Vijayalakshmi vs State

Arunachalam, J.—Appellant Vijayalakshmi was tried in S.C.No.92 of 1985 on the file of the Additional Sessions Judge, North Arcot at

Vellore, under four heads of charges. The first two charges were framed under S.302 Indian Penal Code, alleging that she had caused the death of

her two daughters Kalpana aged 9 and Gayathri aged 4 years by throwing them inside a well, consequent to which they drowned and died due to

asphyxia. The appellant is stated to have dropped both the children inside the well at or about 2 p.m. on 6.5.1985 at Chengam Thukkapettai

village. The well in which the children were thrown belonged to Asokan, not examined. The appellant was also charged under S.307 Indian Penal

Code for having attempted to cause the death of her son Karthikeya Sivasankaran (P.W.2) aged about 6 years, by throwing him similarly inside

the well. P.W.2 managed to escape. The appellant was further charged under S.309 Indian Penal Code for having attempted to commit suicide by

jumping inside the well after throwing her children inside it, with a view to end her life.

Learned Sessions Judge after elaborate trial, found the appellant guilty of all charges, convicted and sentenced her to undergo life imprisonment

on two counts of murder; 3 years rigorous imprisonment for attempt to murder and one year simple imprisonment under S.309 Indian Penal Code.

The substantive sentences of imprisonment were directed to run concurrently.

For the disposal of this appeal, the prosecution case will have to be stated in brief. Vijayalakshmi (appellant) is the wife of P.W.8 Ravichandran.

The spouses had four children born of their wedlock. P.W.7 Suresh Kumar aged about 13 years and P.W.2 Karthikeya Sivasankaran are the

sons, while deceased Kalpana and deceased Gayatri were the female children. P.W.8 was residing along with his wife and children at Chengam

Melpalayam. He owned no property and the only source of living was the daily wages he earned as a coolie in a hotel. On some days, he would

earn Rs.10/- per day and on other days approximately Rs.7/-. Due to dire poverty the whole family was constrained to starve most of the time.

Due to abject poverty leading to unfortunate starvation of the young children, there used to be frequent quarrels between the spouses. In this

background on 5.5.1985 during afternoon the appellant beat her son P.W.7, since he had lost the house keys. On the same evening the appellant

and the other children went over to witness a cinema. P.W.7 refused to join. On return from the picture house, the appellant again chastised

P.W.7, which was not relished by P.W.8. P.W.8 objected to the manner in which the appellant was treating P.W.7. Difference of opinion between

these spouses, resulted in a wordy altercation. P.W.7 has stated in as follows:

Pricked by the words hurled at her, the appellant left the house on the very night. P.W.8 fed his children and slept off. On the next morning the

appellant returned to her house. P.W.8 scolded her, that it was unfair to stay outside the house and that too for the whole night. So saying he left

for his workspot. In the afternoon on 6.8.1985 P.W.7 returned home and went back a little later to the bus stand to sell ''Lottery tickets''. At that

time, the appellant and her three children were in the house. After P.W.7 left the house, appellant took both the deceased and P.W.2 in the guise

of taking them to the house of flower vendor chellam. However, she took all the three of them to the well situated in the land of Ashokan (not

examined) and threw all of them inside it before she herself jumped inside. Both the deceased drowned and died as a result of Asphyxia. P.W.2

and the appellant managed to escape from the watery grave. The appellant who came out, went near a tamarind tree and sat there. P.W.2 who

came out with wet clothes, immediately informed P.W.3 Rajendran, who was separating coconuts, that his mother had thrown his sisters and him

inside the well and attempted to drown herself. P.W.3 did not believe the version of P.W.2, since he was under the impression that the young boy

was just joking. However, at or about that time, a vegetable vendor, who was passing on the road, commented that if the appellant wanted to die,

she could have thrown herself and as to why she should throw her children inside the well. The words uttered by the vegetable vendor induced

P.W.3 to go near the well. He found the corpse of one child floating inside the well. Meanwhile, appellant Vijayalakshmi beckoned P.W.4

Panchalai, who was grazing cattle in the nearby Pallikooda Chettiar Patti. When P.W.4 went near and enquired the appellant, the latter gave out an

extra judicial confession, that she threw her children inside the well and she too fell inside. She and one child escaped and came out of the well.

She also requested the passers by to save her children. The stray passers-by commented that the children might have died and hence police should

be informed. Mean time, P.W.5 Velu, belonging to Neepathdurai village was on his way to Chengam along with his friends to witness a cinema.

While the bus in which he was travelling was passing near the well, he found a crowd. He got down from the bus and went to the scene. On

enquiry, he learnt that two children had died due to drowning inside the well. He found one corpse of a girl floating inside. He dived inside the well

and brought out the said corpse. After coming up, he was informed that another child was also inside the same well. He dived again and came out

with the corpse of the second child.

At or about that time, P.W.7 Suresh Kumar was selling raffle tickets at the bus stand. He was informed by one Mani (not examined) a

coworker with his father, that his mother had thrown his brother and sisters inside a well, in which she too had jumped. Immediately, P.W.7 went

towards the well. He found his mother sitting near the tamarind tree. A crowd had gathered. Someone in the crowd informed him, that a young boy

with wet clothes had come out of the well and had gone towards the village. Hence P.W.7 went in search of his younger brother P.W.2. He could

not find P.W.2 in his house. He then noticed four or five persons going together towards the well. In that group, P.W.2 was also seen. P.W.7

picked up P.W.2 and both of them went in search of their father. Later P.W.7 found a letter Ex.P.4, left in the house, by his mother. Ex.P.4 was in

the handwriting of the appellant. P.W.7 produced Ex.P.4 to the investigating Officer on 7.5.1985.

P.W.1 Pandurangan, Village Administrative Officer, was informed by his village menial, that two corpses of children, were found in the well,

opposite to the office of the Block Development Officer, P.W.1 immediately proceeded to the scene well. He noticed the dead bodies of two

female children placed on the northern side of the well. When he enquired a few persons at the scene, he was informed that the two girls were

children of P.W.8 and the appellant. P.W.1 returned to his office and prepared his report Ex.P.1. He forwarded a copy of Ex.P.1 to the Judicial II

Class Magistrate, Chengam. He forwarded the original complaint to the concerned police station. P.W.11 Sundararajan, the then Sub Inspector of

Police, received Ex.P.1 at or about 6 p.m. and registered a crime, under the head ''suspicious death''. P.W.ll also forwarded a copy of the printed

first information report to the concerned Magistrate. Thereafter P.W.11 proceeded to the scene well and enquired P.W.2. Soon after enquiry of

P.W.2, P.W.11 became aware, that this was a case of murder and hence he altered the crime into one under S. 302, Indian Penal Code, and

forwarded express first information report to Court and his superior officers.

P.W.12 Nagappan, the then Inspector of Police, received a copy of the express first information report at or about 11 p.m. on the same night.

He reached the scene of occurrence at or about 7 a.m. on 7.5.1985 and prepared the observation mahazar Ex.P.3 attested by P.W.1 He also

prepared the scene sketch Ex.P.10. Between 7 a.m. and 10 a.m. he conducted inquest over the corpse of Kalpana and prepared the inquest

report Ex.P.11. Between 10 a.m. and 11.30 a.m. he conducted inquest on the corpse of Gayatri and prepared the inquest report Ex.P.12. During

both the inquests he examined P.Ws. 1 to 3, 4, 7, 8 and others.

After inquest, he entrusted both the corpses to police constable Chenna Kesavalu (P.W.10), with a requisition, to take them to the Government

Hospital, Chengam, for the conduct of postmortem. At or about 12 noon P.W.12 arrested the appellant, who was available underneath a tamarind

tree opposite to the Office of the Block Development Officer.

P.W.9 Dr. Prema Kumari commenced autopsy on the dead body of Gayatri at 1 p.m. on 7.5.85. She noticed the following appearances on the

dead body.

The body was dry and cold, moderately nourished. Body was symetrical and body was pale-colour of iris was black and hair was black length

5"". No external injuries were found. The body was not decomposed. External features of the body symmetrical ,scalp, hair are normal. Eye lids

were closed and pupils were dilated. Bloodstained fluid discharge from the nostrils were present. Tongue was not protruded and blood stained

fluid was present. Teeth were all intact and No. 7/7. No discharge from ears. Thorax snape and contour were normal. Hands were empty. Nails

were not broken and blue in colour. Abdomen was distended and Diaphragm was normal. Blood stained fluid present in the peritoneal cavity.

Thorasic gage was normal and there was no fracture of ribs. No fluid in pleural and pericardial space. Heart about 80 grams in wt. and each lung

wt. about 120 gms and congested on section and blood stained, fluid was present. The stomach was distended with gas. lever wt. 500 gms and

congested on section and hyporenal. Spleen wt.50 gms. and congested on section. Each kidney wt. 50 gms and congested section. Small intestine

were distended with gas and the appendix was normal. Bladder was empty. There are no fracture of pelvis and no injury to soft parts. No fracture

of skull and membrane intact and vessels of membrane were engorged. Brain wt. 500 gms. and congested on section and vessels were engorged

no fracture of spinal column no fracture and no dislocation of vertebra.

In the opinion of the doctor, the deceased had died of asphyxia due to drowning 20 to 24 hours prior to commencement of postmortem

examination. Ex.P.6 is the postmortem certificate.

The same doctor conducted autopsy on the dead body of Kalpana at 3 p.m. on the same day and found the following appearance:

The body was dry and cold and moderately nourished and pale in colour. Irish black. Hair black length 6"" to 7"". Body was found with multiple

aberrations: (1) Just above the right ankle joint; (2) Power abdomen; (3) Above the left elbow joint; (4) left parietal region 1"" above left ear; (5)

left side of back (left hip) (5) Above the back of right elbow joint. Body was not decomposed. Body was symmetrical ,scalp-normal. Eye lids

closed. Pupils dilated. Blood stained frothy discharged from both nostrils. Tongue not protruded blood stained fluid present. Teeth all over intact

7/7 in No. Thorax was normal in size and 7/7 contour. Hands were empty. Nails not broken and blue in colour. Abdomen slightly distended and

diaphragm normal. Blood stained fluid in pleural and peritoneal space. Thoraxnormal, No fracture ribs and no fluid in pericardium. Heart 100 gms.

lungs - each 150 gms and congested on section. The stomach distended with gas. liver wt. 600 gms, congested on section. Spleen wt. 50 gms.

congested on section. Each kidney wt. 50 gms. congested on section. Small intestine distended with gas. Appendix-normal. Bladder empty. No

fracture on pelvic and no injury to soft tissues. No fracture of skull. Membrane in tact. Vessels and membrane were engorge porcin Wt. 600 gms.

On section congested. Vessels were dilated and engorged. No fracture or no dislocation of vertebrae. No injury to spinal column.

In the opinion of the doctor P.W.9, Kalpana had died on Asphyxia due to drowning 20 to 24 hours prior to commencement of post-mortem

examination. Ex.P.7 is the post-mortem certificate.

On 9.5.1985, P.W.12 forwarded requisitions Exs.P.13 and P.14 to the Chief Judicial Magistrate, Vellore, to record statements of the

appellant and P.W.2 under S. 164, Cr.P.C. After completion of investigation, P.W.12 laid the charge-sheet against the appellant before the

committal Court on 20.6.1985.

When the appellant was examined under S.313, Cr.P.C., to explain the incriminating circumstances appearing against her in evidence, she

denied her complicity in the crime. She went on to add, that there was no need for her to have attempted to commit suicide. Her husband hated

her. She went towards the well on receiving information that her children were floating inside the well. On reaching the scene, she cried. Her

husband had made her, the offender. On the next morning she was taken to the Police station, to obtain her signature. However, the appellant did

not choose to adduce any evidence in defence.

On a consideration of the oral and documentary evidence, the learned Sessions Judge accepted the prosecution case, rejected the defence and

dealt with the appellant in the manner indicated earlier.

We have heard Mrs. Thenkodi Nelson, learned Counsel appearing on behalf of the appellant and Mr. S. Shanmughavelayutham, learned

Additional Public Prosecutor representing the State. Both the learned Counsel took us through the recorded evidence in meticulous detail. The

learned defence Counsel contended that the only eye witness P.W.2 was a juvenile, whose evidence cannot be accepted, since he had admitted

when cross-examined, that he was taken to the police station and kept there on the day earlier to his deposition in Court. She commented, that

non-examination of important and independent witnesses was a serious lacuna. She then urged, that the delay in the receipt of the first information

report by the Magistrate cannot be easily brushed aside. She contended that the time of death was contradictory and the arrest was suspicious.

All these contentions were resisted by the learned Additional Public Prosecutor.

We have carefully considered the contentions urged by either counsel. This is an unfortunate case where a crime, on account of poverty, had

led to two young lives meeting their ends, in an unfortunate manner, having been thrown inside the well by the very mother who brought them into

this world. Sometimes poverty and starvation lead to the parents, not wanting their children to suffer, attempting to put an end to their lives

knowing fully well that it is contrary to law. Rhyme or reason does not enter into their minds and they suffer from a phobia, that by killing them,

they would achieve their object of putting an end to the sufferings of the children, little realising that suffering in its true sense, is to commence only

thereafter. These are all ways of the world and, while appreciating evidence, in a case of this nature, the Court is bound to have a broad

perspective of the entire circumstances, which had led to the unfortunate event. Merely because death was gruesome, one cannot rush to the

conclusion that the offence is murder simplicitor or, at the same time, on unfounded or misplaced sympathy, one should not abruptly conclude, that

the offence will not amount to murder. The Court is burdened with an onerous duty, of arriving at a conclusion, on the nature of offence committed,

taking in entirety the total evidence placed before it for consideration, by the prosecution and the defence. That is exactly the exercise that we

intend to adopt in this appeal. After carefully examining the evidence, we can state without hesitation, that it would be idle to contend that the

appellant had not thrown her children inside the well and had not further attempted to put an end to her life. The contradiction as to the time of

death, pointed out by the learned Counsel, is more on the evidence, as to when exactly the dead bodies were removed or the time at which P.W.2

left the scene. These minor variations of an hour or so, this way or the other, cannot erase the basic fact of two children having been thrown inside

the well, from which their dead bodies were recovered, shortly thereafter. We are unable to comprehend, as to who else should have been

examined, apart from the independent witnesses who had gone to the scene, soon after learning about the unfortunate incident, and putting in all

their efforts, to remove the children, out of the well. There is nothing suspicious about the arrest, for, the appellant, who wanted to drown herself to

death, had rushed out of the well at the last moment due to natural instinct and reflex action, that had intervened. This longing to live, probably, was

prompted, since P.W.2 was able to escape, from a watery grave. It is not as though the appellant had attempted to make herself scare from the

scene of occurrence, after committing the atrocious acts. She was wrecked in total despair and was unable to move out, from the place where the

corpses of her children were placed. It was that unadulterated and towering love which had put the children inside the well though on untenable

notions and had further made the appellant stick steadfast to the scene till she was arrested the next morning, at the same verses, by the

Investigating Officer.

It is true that the first information report, had reached the Magistrate only on the next morning, but the same has no sinister consequence.

Initially the crime was registered as ''suspicious death'' and later it was altered into one under S.302, Indian Penal Code. There is no scope for any

false implication. The manner in which P.W.8, P.W.7 and P.W.2 had reacted after the incident, also shows, that they were not very anxious to

hound out, and handover the appellant to the police, for all of them were fully conscious that dire poverty and consequent agonizing suffering was

the sole cause, for the unfortunate erasure of two young lives from this world. It was therefore given to the village Administrative Officer to set the

law in motion. In the usual course, the evidence of a juvenile is certainly scrutinised with extreme care and caution for, young minds can be tempted

or coerced to depose in a particular pattern, making them believe, that speaking in such a manner was either required or that alone would reflect

the truth. P.W.2 himself was the victim and therefore was quite competent to speak all that his mother had done. Even while admitting that he was

kept at the police station on the earlier night, before his deposition, he has clearly affirmed, that he was not tutored to speak in any particular

pattern. The learned Sessions Judge had also noticed the demeanour of P.W.2 before accepting his evidence. We have, with meticulous attention,

examined carefully, the evidence of P.W.2, and we have no hesitation in accepting, that he has spoken the entire truth. That P.W.2 has spoken the

entire truth is further corroborated by the evidence of P.W.3, who went over to the well a little later, since initially he was under the impression that

P.W.2 was playing practical joke. P.W.3 had also seen the dead body of a girl inside the well, while the appellant had stretched herself underneath

a tamarind tree. The evidence of P.W.3 further shows, that the family of P.W.8 found it extremely difficult to maintain itself due to excruciating

poverty. P.W.3 has further stated, that the appellant used to starve and feed her children as and when possible. The evidence of P.W.5 who had

removed both the corpses from the well, is one another clinching link in the sequence of events, placed for scrutiny before Court, by the

prosecution. P.W.5 had also noticed the appellant underneath the tamarind tree. The evidence of P.W.4, a cow-herd is not only revealing, but

confirms that the occurrence should have taken place in the manner projected by the prosecution. The appellant had made an extra judicial

confession to P.W.4 soon after the crime. She had confessed that she had not only thrown her three children inside the well but had tried to kill

herself by drowning. She has further stated, that she and one child escaped drowning and came out of the well. The extra judicial confession made

by the appellant to P.W.4 gets corroborated by the evidence of P.W.2 the sole occult witness. We are unable to find any impediment in the

evidence of P.W.4. She had no motive to falsely implicate the appellant in a crime of this nature. The evidence of P.W.4 rings true and natural. The

evidence, of P.Ws.2 to 7 and 8, really portrays a picture of the hard life the family was leading. When starvation was a natural phenomenon in that

family, it is not surprising, that such starvation led to frequent altercations between the spouses. The appellant as well as P.W.8 appear to be fond

of their children. The mother never wanted her children to starve and the father cannot tolerate even mild chastisement of the children by his wife.

Both the appellant and P.W.8 were competing with each other in showering their love on the children. It is unfortunate that on the day prior to

occurrence, during the course of a wordy altercation, P.W.3 had stated that, if he and his children had to live happily, it could be achieved, only in

her absence. P.W.8 had stated this after referring to the abject poverty. The appellant had replied, that she was unable to manage all her children

calling them This reaction is the outcome of grievance, resulting from poverty. The agony arising out of a continuous course of life of starvation was

so pricked, on the night on 5.5.1985, and the unkind words uttered by P.W.8, though such words are not uncommon in the normal ways of life,

led the appellant to leave the house immediately on the very night. Since she could not go anywhere else and probably the love of children

magnetted her, she returned on the next morning to her residence. It was then, that the incident of the earlier night, had been ceaselessly working in

her mind and even on the fateful day, she could not feed her children properly. P.W.7 has stated that he fed his younger sister, one of the

deceased, with little kanji, that was available, before he left for the bus stand in the afternoon. His mother had given him bread made out of corn-

flour. Frustration had led to the appellant taking her children to the well and throwing them inside the well, while attempting to kill herself, in the

process. Realization of her lawlessness had come in a little too late by which time, the two girls had breathed their last. The medical evidence

furnished by P.W.9 fully confirms, that both the deceased had died of asphyia, due to drowning. The oral evidence and medical evidence fully

corroborate each other, leaving no doubt whatever about the cause of death and the manner in which death had occurred. Investigation is equally

blemishless. Ex.P.4 letter written by the appellant in her handwriting, and produced by P.W.7 before the investigating officer, identifying the writing

as that of his mother, is one more connecting link indisputably pointing out the mental make up of the appellant. Though the appellant had denied

that she was the author of Ex.P.4, we have no hesitation in rejecting her case. The appellant has poured out all her love for her children in this letter

and further she had given such details of the loans she had obtained from several persons with a request to repay all of them for, after her death,

she did not want to be blamed as an ungrateful soul. How the mind of the appellant should have worked from the night of 5.5.1985, has also been

revealed in Ex.P.4. She has stated that even on the night of 5.5.1985 she could have killed herself but her love for Kalpana and Gayatri (both

deceased), made her come back to the house for she could not separate herself from them. She has further stated that only if her death could give

her husband happiness, she deemed it as a privilege, by which she could satisfy her husband.

On such material the only conclusion that can be arrived at is that the appellant is the offender and it is she who had killed both the deceased

and attempted to murder P.W.2 while indulging herself in putting an end to her life.

Having arrived at this conclusion, we have yet to examine the nature of offence committed by the appellant. Almost in similar circumstances, a

Division Bench of this Court, analysed the law in great detail, and held that the act of the accused jumping with the children was the causative

factor of the death of the children and that the actus reus was clearly established. David Annoussamy, J speaking on behalf of the Division Bench in

Suyambukkani v. State of Tamil Nadu observed as follows:

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.

The learned Judge further stated, that

usually the unfortunate mother succeeds fully, in her attempt, and the matter does not reach the Court but in rare cases where Courts are seized

with such a problem a decision had to be taken as to the true nature of the offence committed by the mother, who continues to survive, though

against her will.

As in that case, the appellant was more concerned with the suffering of her children than the misery to which she was herself subjected to along

with her husband. The father of the deceased (P.W.8) though cannot be stated to be indifferent, was unable to get out of the clutches of poverty. It

appears, the appellant got persuaded, that if she had put an end to her life, as she had planned on the earlier night, children will be uncared for and

would suffer innumerable torments which idea she could not get herself reconciled to. As observed by David Annoussamy, J ""so it is after draining

the cup of sorrow to the dregs that she decided to follow the Nallathangal''s way.

Poverty is woven into the social fabric of our day to day life. Since poverty is so intermingled, if parents are given the right to put an end to the

lives of their children on that score, no decent society can exist. Parents cannot claim that, since they had given life, they have a right to take it

away. The society expects that citizens, however ill placed they may be, should always make an endeavour to survive. It will be too odd to

consider an offence of this nature, on the circumstances unfurled in this case, as the most heinous crime of murder, dealing with the most dangerous

activities to the society and the authors of which could be exterminated by the imposition of sentence of death. As rightly observed by the Division

Bench, in fact, it would be incongruous to impose the sentence of death on a person who had attempted to commit suicide and who somehow or

other was saved therefrom. We agree with the observations of the Division Bench that the extreme course of family suicide, the mother along with

her children, is an excusing circumstance, equivalent to those enumerated in the exceptions to S.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 under S.304, Part I, Indian Penal Code. Nature of

offence, will always have to be decided, on the peculiar facts available in each case. In that view, we set aside the conviction and sentence

imposed on the appellant under S.302 and instead find her guilty under S.304 Part I, Indian Penal Code.

The appellant has been in jail from the date of arrest (7.5.1985) and was not released on bail even during trial. Thus she has served six years

and nine months imprisonment. We are satisfied that the period already undergone by the appellant in jail would be sufficient to meet the ends of

justice for the altered conviction recorded by us.

Even after a decision, on the nature of offence was arrived at by us on 31.1.1992, we were very anxious, that on release from prison, the

appellant should not be neglected by the members of her family for then, she would be impelled over-again, to put an end to her life. We were

anxious to find out, if the husband of the appellant and her children really had affection towards her and would take her back in the family fold. In

the unlikely event of such family re-union, we were anxious to find out, if the appellant could be sent to some Home sponsored by the State

Government, where she could peacefully spend the rest of her life. We directed the Superintendent of Central Jail for Women, Vellore to produce

the appellant before us to-day. We also directed the Investigating Officer to ensure the presence of P.Ws.2, 7 and 8 before us this morning. All of

them were present in Court to-day. P.W.8 is not working anymore in a hotel. He has joined his son P.W.7 Suresh Kumar in vending raffle tickets.

Both of them jointly earn between Rs. 20/- and Rs. 30/- a day. P.W.2, a young boy who escaped death, is also working in shop and earning a

small salary, which probably would suffice to maintain himself. The appellant frankly stated, that not only her husband, but her children as well were

periodically visiting her at the Central Prison, Vellore. Neither the appellant nor her husband, had any other animosity between themselves except

the quarrels, which used to arise, solely due to poverty. Even to-day, each of the claim, contained affection for the other. Though it cannot be said,

that the financial position of P.W.8 is out of words, it is clear, that it is possible for him to lead a better life with his wife, than what had existed in

1985. The children are equally affectionate and would like to embrace their mother in the family fold. Having regard to the human problem which

has ultimately ended in re-union of the family, we do not find any need for the appellant to be taken back to the Central Prison for Women, Vellore

over again. She can join her husband and children straight from this Court hall, to lead as much of a comfortable life as is possible, within the

present means. The appellant is set free and the appeal is disposed of accordingly.