(Judgment of the Court was delivered by R.REGUPATHI,J) The sole accused/appellant was living with her husband/deceased and four children in a Village called Oruthatu. The deceased was a drunkard, leading a wayward life, and was having illicit intimacy with one Velammal/P.W.4 and therefore, there were frequent quarrels and disputes between the accused and the deceased and on one occasion, the deceased stabbed the accused on the left hand and was frequently threatening her that she would be done to death. Under such circumstances, on 11/7/2001, at about 11.45 p.m., while the deceased was sleeping after taking dinner, the accused dropped a heavy stone on the head, resulting in his death. She faced trial before the Principal Sessions Judge, Dindigul, in S.C.No.144 of 2001.
2. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 9, marked Exs.P.1 to P.13 and produced M.Os.1 to 6. The learned trial Judge, on conclusion of the trial, by order dated 5/4/2002, convicted the accused for an offence under
Section 302 IPC and sentenced her to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two years.
3. The case of the prosecution, as spoken to by its witnesses, is precisely narrated hereunder:-
a. P.W.1/Village Administrative Officer deposed that, on 12/7/2001, the accused came to his office at 6 a.m., and told that she murdered her husband on 11/7/2001 at 11.30 p.m., by dropping stone on the head. P.W.1 reduced the statement of the accused into writing under Ex.P.1 and took her to Amayanaickanur Police Station and produced her before P.W.9/Inspector of Police along with Ex.P.1 and his report Ex.P.2.
b. P.Ws.2 and 3 are the younger and elder brothers of the deceased. In their evidence, they stated that the accused and the deceased were living in the same residence along with their children and there were frequent quarrels between them as the deceased had illicit intimacy with one Velammal and was addicted to alcohol and did not give money to run the family.
c. P.W.4, who has been examined to substantiate that the accused was suspecting the deceased whenever he talked to other women, did not support the prosecution case, hence, she was treated as hostile.
d. On 12/7/2001 at 7.00 a.m., P.W.9 Inspector of Police registered a case in Crime No.345 of 2001 for an offence punishable under
Section 302 IPC and through P.W.7 Head Constable, the First Information Report was despatched to the Judicial Magistrate concerned and copies thereof were sent to other superior Officials. At 7.45 a.m., P.W.9 reached the scene of occurrence where he prepared Observation Mahazar and rough sketch as per Exs.P.3 and P.12 respectively. He recovered M.O.1 blood stained blue metal stone, M.O2 half- sleeve shirt, M.O.3 lungi, M.O.4 blood stained cement plaster and M.O.5 sample cement plaster under Ex.P.4 mahazar in the presence of witnesses and conducted inquest over the dead body. Ex.P.13 is the inquest report. Thereafter, the dead body was forwarded to the Government Hospital, Nilakottai, for conducting Post-mortem through P.W.8 Police Constable along with a requisition.
e. P.W.5, the medical Officer, conducted post-mortem on 12/7/2001 at 1.30 p.m., and issued Post-mortem certificate under Ex.P.5, wherein she noticed the following:-
"Both eye lids are not identified. Bleeding present from both ears. Nose is broken. Both upper lips and lower lips are longitudinally grooved and torn. Tongue is inside the mouth.
External injuries:-
1.Depressed and crush injury on the right half of the face with following injuries.
2.An irregular lacerated wound in the right side of the chin. Fracture of right side of the mandible about 4 x 3 cm in length.
3.Nose is broken and depressed and there is fracture of the nassals bones and destructed.
4.Right eye is pushed in the orbital cavity and destructed into pieces and there is irregular lacerated wound in the right cheek below the right eye of 4 x 2 cm x bone depth. There is also fracture of cheek bones.
5.Left eye completely reddishness of the conjective and the eye-balls could not been seen.
6.Between eye lid and left eyebrow there is irregular lacerated wound 2 x . x cm.
7.An irregular lacerated injury on the right side of the forehead above the right eyebrow of 4 cm x " cm x fracture of the frontal bone.
8.Irregular lacerated wound in the centre of forehed of 3 cm x . cm. Breadth and bone breadth. Right side lower haw is compressed. Lower jaw teeth are lost.
9.Upper jaw compressed and all the teeth are lost on that side.
10.Abrasions on the back of the scalp 3 x . cm in depth.
11.An irregular lacerated wound on the back of the right side of the scalp of 3 x 2 cm x bone depth.
On opening the neck, hyoid bone are intact. On opening the chest, both the lungs are pale. Heart is empty. On opening, stomach contains partly digested food particles. on opening the scalp layer of the head there is vasaline of the blood and there is depressed and grooved fracture over right frontal, right facial bone and the right temporal bones. On opening the skull blood clots are seen on the brain."
The Doctor opined that the deceased would appear to have died due to shock and hemorrhage on account of the injuries sustained.
f. P.W.9 forwarded the material objects along with a requisition to the learned Judicial Magistrate, Nilakottai, to send the same for chemical examination. Exs.P.8 and P.9 are the Chemical analysis and serological reports.
g. The Investigating Officer, after examining the witnesses and collecting materials, concluded the investigation and laid final report on 17/9/2009 against the accused for the offence under
Section 302 IPC.
4. When the accused was questioned under
Section 313 of the Code of Criminal Procedure regarding the incriminating materials adduced by the prosecution, she denied her complicity in the crime and pleaded innocence. Neither oral nor documentary evidence was let in by the defence.
5. Learned trial Judge, after examining the materials placed and considering the arguments advanced by both sides, passed the order of conviction and sentence; hence, the present appeal.
6. Learned counsel appearing for the appellant would confine and focus his arguments as to the background in which the offence is said to have been committed by the accused. According to him, there are impelling circumstances indicating that the accused had entertained a sustained provocation on account of the conduct of the deceased who once stabbed her with knife on the hand and was also threatening her that one day she would be finished off. Referring to the evidence of P.W.1 Village Administrative Officer, during the course of cross-examination to the effect that the stone M.O.1 was so big that it was impossible for even two persons to lift at least upto the knee, it is submitted that it was quite impossible for the accused, an average lady, to lift such a big stone and drop it on the head of the deceased.
b. It is pointed out that though the children were available at the relevant time, they were not enquired/examined and none of the neighbours was cited as a witness in the case. Ex.P.1 statement alleged to have been given by the accused to the Village Administrative Officer namely P.W.1, is a concocted document and such extra judicial confession to the Village Administrative Officer cannot be taken as a strong material to substantiate the case of the prosecution. Apart from the evidence of P.W.1, though the prosecution has projected about the strained relationship between the accused and the deceased through the testimonies P.Ws.2 and 3, no other material/circumstance has been produced/cited to substantiate such aspect. According to the learned counsel, the case of the prosecution not being strong enough to hold against the accused, the trial Court proceeded on a wrong footing and convicted her for the offence under
Section 302 IPC and such order is liable to be interfered with.
7. Per contra, learned Additional Public Prosecutor submits that the occurrence had taken place at the residence of the accused and the deceased and it was the accused who confessed the guilt to P.W.1 and moreover, since the deceased and the accused were living in the same Village, they are known to P.W.1.
He points out that, after reducing the statement given by the accused under Ex.P.1, P.W.1 took her to the Police Station situated next to his Office at 7 a.m., and that the investigation was taken up by the Police without any loss of time and further, the First Information Report was received by the learned Magistrate at 10.20 a.m.; thus, there was no possibility for embellishment or improvement of the prosecution case.
M.O.1 stone was recovered near the dead body of the deceased and the medical evidence fully corroborates the prosecution case. P.Ws.2 and 3, who are brothers of the deceased, clearly testified about the motive. In view of the strained relationship between the accused and the deceased, the statement/confession given by the accused assumes importance particularly when no contra material has been produced by the defence. Under such circumstances, it is clear that the prosecution has proved its case beyond reasonable doubt and that the reasons assigned by the trial Judge for convicting and sentencing the appellant under
Section 302 IPC are well founded.
8. We have perused the materials available on record and carefully considered the rival submissions made on both sides.
9. The accused married the deceased during 1985 and out of the wedlock, two male and female children were born and at the relevant time, except the first son, the other children were living at the place of occurrence/residence. The accused had confessed under Ex.P.1 to P.W.1 stating that the deceased was having illicit intimacy with P.W.4 and he used to return home every day after consuming alcohol and he was leading a wayward life and did not give money for maintaining the family and under such circumstances, there were frequent quarrels between them and the deceased was continuously threatening her that she would be done to death. Three years prior to the occurrence, the deceased stabbed her on the left hand and she underwent treatment in the hospital and bearing in mind the family circumstances and the welfare of the children, she did not give any complaint to the Police.
On the date of occurrence, she purchased provisions from grocery shop on credit and for that, the deceased indulged in quarrel with her, pulled the tuft, assaulted her, uttering 'on three occasions, you escaped, but today, I would not leave you without murdering.' Under the grip of fear, she spent the night sleepless and thinking that, if spared alive, the deceased would kill her, she decided to eliminate him and later, while the deceased was asleep in the verandah at 11.45 p.m., she lifted a big stone and dropped it on the head of the deceased, resulting in his death. Thereafter, she went to P.W.1 Village Administrative Officer and made extra judicial confession under Ex.P.1 at 6 a.m., and later, she was produced before the Police by 7.00 a.m., and the Investigating Officer visited the scene of occurrence by 7.45 a.m., and commenced the investigation. The First Information Report reached the Judicial Magistrate by 10.20 a.m.
10. As regards the character of the deceased, as stated in Ex.P.1, P.Ws.2 and 3 have uniformly deposed that he was a drunkard and was having illicit relationship with other women. The medical evidence corroborates the prosecution case that the deceased died in the manner as projected by the prosecution. The other materials collected would lead to an irresistible conclusion that it was the accused who had committed the offence. However, the position and circumstances in which the accused was placed prior to the commission of the offence is highly relevant in this particular case. The accused, who is the wife of the deceased, was continuously subjected to torture for years together and, for the sake of children even after receiving a stab injury at the hands of the deceased, she patiently led the matrimonial life. It was the deceased who was repeatedly threatening the accused that she would be done to death. Such act of threat from the deceased culminated into a psychological imbalance and had a strong impact on the accused to kill the deceased. The principle of sustained provocation has been considered by this Court in a number of decisions. In a case law reported in SUYAMBUKKANI Vs. STATE {1989 L.W (CRL.) - 86}, David Annoussamy, J, speaking for the Bench, made the following observation:
"Though there has been here and there attempts in those decisions to bring the sustained provocation under Exception 1 to Sec.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 Sec.300 I.P.C. Sustained provocation is undoubtedly an addition by Courts, as anticipated by the architects of the Indian Penal Code."
Having regard to the factual aspects involved therein, the Bench considered the true nature of the offence committed by the accused mother, who in her unfortunate attempt to commit suicide along with her children destined to be survived however, lost the children and, by making the following observation, "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 Exception to S.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 under S.304, Part I, I.P.C", and referring to the judgment of the Supreme Court reported in RADHARANI Vs. STATE OF MADHYA PRADESH (A.I.R. 1981 SC - 1776), wherein it was observed thus:- "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 209 of the I.P.C. She has been released on admonition for the offence under S.309, I.P.C. and has been sentenced to imprisonment for three months for the offence under S.307. We see no valid reason for making this distinction and therefore, direct that she shall be released on admonition for the offence under S.307 also.", modified the conviction of the trial Court under
Section 302 IPC (2 counts) as one under
Section 304 (i) IPC (2 counts) and sentenced her to imprisonment for the period already undergone by her.
11. Literally, the parable of this case may be contrasted with the following couplet in Tirukural.
""gPypbga; rhfhL kr;rpWkg; gz;lq;
rhy kpFj;Jg; bgapd;."
"
"With peacock feathers light you load the wain;
yet, heaped too high, the axle snaps in twain".
We could very well discern that the axis/heart could not bear anymore the torture and awesome threat of the husband because, hitherto she exercised extraordinary patience for the sake of the children and, when realised that she would not be left alive and thereafter, her children would be made orphans, the accused, who was at the brink of patience and under the grip of fear and worry, broke out and committed the offence exactly as the collapse of the axis on excess loading of a single feather of peacock beyond the capacity.
12. Viewed in that perspective in the light of the principles evolved in the aforesaid case law as well as the facts and circumstances of the case, we hold that the appellant acted under sustained provocation and that sentencing her to the period already undergone would meet the ends of justice.
13. In the result, the appeal is allowed in part and the conviction under
Section 302 IPC and the sentence of imprisonment for life imposed by the trial Court are set aside and instead we hold that the accused is guilty under
Section 304 (i) I.P.C. and, in the interests of justice, the period of imprisonment already undergone by her is treated as the sentence imposed under the said penal provision.
mvs.
To
1. The Principal Sessions Court, Dindigul.
2. The Inspector of Police Ammayanaickanur Police Station Dindigul District.
3. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.