In Re: Subban alias Subbiah

Maheswaran, J.—The reference R.T. No. 5 of 1985 u/s 366, Crl.P.C., and Criminal Appeal No. 580 of 1985 are heard together. The Appellant has been convicted of an offence punishable u/s 302, I.P.C., and is sentenced to death by the Sessions Judge, Coimbatore Division, for causing the death of one Valliammal by stabbing and cutting her with a knife on 15th March, 1984, at 1.30 p.m. at Shanmughapuram, Coimbatore District, while she was in her house. He has also been convicted of an offence punishable u/s 449, I.P.C., for house trespass and also u/s 324, I.P.C. for causing hurt to one Chinnakannal with a dangerous weapon. No separate sentence was awarded under those sections.

The facts need narration: On 15th March, 1984, PW1 Kuppathal and PW2 Pappathi, daughter-in-law of Kuppathal, were attending to their usual avocation in their house in the small village of Shanmughapuram, in Coimbatore District, little realising that they will be witnessing a bizarre crime at the house of Valliammal, the deceased. PW1 Kuppathal resides about five feet away in a house (sic) west of Valliammal''s house, while PW2-Pappathi, daughter-in-law of PW1 lives in a house south of Valliammal''s house and that house is four feet away from Valliammal''s house. At about 1-30 p.m. on 15th March, 1984 P Ws.1 and 2 heard the cry of Valliammal and P Ws.1 and 2 rushed to the house of Valliammal from where the cry emanated. The door was closed. Both of them peeped through the eastern window and they saw the Appellant cutting the neck of Valliammal, resting her head on a water tank and then pushing her down and again cutting her with a knife. The Appellant had seen P Ws 1 and 2 peeping through the window. When he was about to open the door, P Ws 1 and 2, realising that the Appellant had seen them, ran away towards east and then to their houses. PW3 Chinna Kannal resides ten feet away on the west of the house of Valliammal, deceased. She also heard an alarm at about the same time. She saw P Ws.1 and 2 running away from the house of Valliammal. PW3 opened the door of the house, which was closed. The Appellant was inside the house. His dhothi was besmeared with blood. On seeing her, the Appellant stabbed on her right hand with the knife, saying that he will kill her as he had killed Valliammal. The stab was given with such a force that the blade of the knife MO1 came on the other side of the hand. After stabbing PW3 the Appellant washed his hands and the knife MO1, with the water in a vessel kept before the house of one Chinnan. When the Appellant was about to get on the cycle MO3, which he has hired from PW5 to escape from the scene, he was confronted by PW4 Natarajan, Rajamani, Shanmugham, and Elumalayan, and the Appellant fell down from the cycle. The knife MO1 which he was holding in his left hand injured the right hand of the Appellant. PW4 went inside the house and found Valliammal in a pool of blood. Life was extinct in her. The Appellant was in a state of semi-consciousness. PW4 sprinked water on the Appellant and made him to regain consciousness. The Appellant told PW4 that he cut the neck of Valliammal on account of the dispute in partitioning the properties. He also told PW4 that he had stabbed PW3. The Appellant was then bound with ropes and was made to sit down. PW13 Ruthdramurthi is the Village Administrative Officer of Erumbari of another Village near Shanmughapuram. He was also in-charge of Shanmughapuram Village. On 15th March, 1984 he went to Sambaravalli Village for making tax collections. At about 3 P.M. the relatives of Velappa Udayar, husband of the deceased Valliammal, came and told him that Valliammal had been murdered. PW13 went to the scene and found Valliammal lying dead in her kitchen with cut injuries on her neck. Near the house of Valliammal, the deceased, PW13 saw the Appellant bound with ropes. He also found MO1 knife and MO3-Cycle near the Appellant. He further found injuries on the right hand of the Appellant. PW13 was also informed that PW3 was also injured. PW13 sent for PW3 and he took PW3 and the Appellant and Thalayari to the Police Station at Karamadai. PW3 gave Ex. P1 the complaint before PW14, Sub Inspector of Police, Karamadai, and he registered it in Crime No. 59/84 under Ss.302, 324, 341 I.P.C. Ex.P19 is the First Information Report. He sent PW3 to the hospital for treatment. He arrested the Appellant at 8.45 P.M. and recovered M Os.8 to 12, Dhothi, Shirt, Banian and underwear of the Appellant, under Ex.P15- Mahazar. He also prepared an observation mahazar Ex.P16 and Ex.P20 sketch and later sent the Appellant to the Hospital.

PW8, Dr. Ramaswami, Asst. Surgeon, attached to the Govt. Hospital, Mettupalayam, examined P.W.3 at 11.35 PM on 15th March, 1984 and found on her a deep incised wound which has pierced the whole of the right hand at the level of the right elbow measuring 4" x 4" x 3". Ex.P8 is the wound certificate issued by PW8. He also examined the Appellant at 4.00 AM on 16th March, 1984 and found on him a sharp incised wound of 3" x 2" x 2" in size in the medical aspect of right hand. In the meanwhile, PW15 received the copy of F.I.R, Ex.P19 at about 10.30 P.M. on 15th March, 1984 and went to the scene of occurrence at 11.30 P.M. and held inquest till 3.00 AM over the dead body of Valliammal and prepared inquest report Ex.P21. At the time of inquest he examined P Ws. 1,2, 6 and 13 and later sent the body of the deceased through P.W.9-Police Constable, with a Memo Ex.P5 to the Hospital for post-mortem examination. He also recovered M. Os. 14 to 17 blood stained plaster pieces and sample pieces of plaster not stained with blood and wooden piece and a gunny bag, from the scene under Ex.P18 mahazar. He also examined PW3 at the Hospital at Mettupalayam.

PW.7, Dr. Hariharan, Asst. Surgeon, attached to Govt. Hospital, Mettupalayam, commenced autopsy on the dead body of Valliammal at 11.35 A.M. on 16th March, 1984. He found an incised wound about 3" length and muscle deep over the neck from the right side crossing the midline and another incised wound about 4.5" length about 1" below injury No. 1. He also found the jugular vein and the carotid artery on the right side cut. He further found sternomastoid muscle and the rib muscles on the right side cut. The right side of larynx was found cut. He also found an incised wound on the left side of neck about 2.5" length and another incised wound about 2.5" length and 2" deep below injury No. 3 just above the lateral end of left clavicle. Some veins were found cut. He also found an incised wound about 1" length 1" deep on the right side of back of neck and an incised wound 1" length 2" deep on the right side of chest at the level of mid clavicular line at the region of 8th intercostals space and oblique in direction, He further found an incised wound 1" length 2" deep on the mid axillary line in the region of the 5th intercostals space and another incised wound 2" length at the level of L1, 1" from the midline on the back which is oblique in direction. Yet another incised wound was found just medial to and 4" above the injury No. 8, 1" length entering into the peritoneal cavity and horizontal in direction. He further found an incised wound vertical in direction 1" length depth. He also found left kidney cut and injury to the right lobe of liver. He gave his opinion in the following terms: "The deceased would appear to have died of shock and haemorrhage due to injury to carotid artery, injuries to lungs, liver, spleen and left kidney". Ex. P.6 is the post-mortem certificate issued by PW.7. Further, investigation was taken up by FW.16 Inspector of Police, Mettupalayam. He examined P Ws. 4 and 5 and laid the charge-sheet on 10th July, 1984.

When the Appellant was examined with reference to the incriminating circumstances appearing against him in the evidence, he denied the offence. He stated that PW.6 who is an Advocate, and who is the son of his elder brother through Valliammal, the deceased, has foisted this case against him.

The learned Sessions Judge on an assessment of the evidence convicted him of the offences referred to above and sentenced him to death for the offence u/s 302, I.P.C. The Appellant challenges the conviction and sentence.

Valliammal was the wife of Velappa Udayar, elder brother of the Appellant: Valliammal met her death by homicidal violence. The injuries more fully described in Ex. P6 Post-mortem certificate very clearly show that she died on account of shock and haemorrhage due to injury to carotid artery and injuries to lungs liver, spleen and left kidney. The important blood vessels, jugular vein and carotid artery were cut. There were as many as ten injuries on the body of Valliammal. P.W.7 Dr. Hariharan, who conducted autopsy, is of the view that these injuries could have been caused by a knife. The motive for the occurrence is spoken to by PW.6, son of the deceased, who is an Advocate, practising at Coimbatore. The Appellant is the paternal uncle of P.W. 6. According to him, the Appellant wanted a share in the self earned properties of his father, Velappa Udayar and that was objected to by the deceased, his mother. The Appellant has also made an extra-judicial confession to PW.4 that he murdered Valliammal on account of the dispute in the partition of the properties. It is pointed out by the learned Counsel for the Appellant that the best person who could have spoken about the motive is the husband of Valliammal, i.e., father of P.W.6. It may be pointed out here that P.W.6 is an Advocate and is the son of Velappa Udayar. There is no reason to discard the evidence of P.W.6. Nothing much turns on the non-examination of Velappa Udayar. Further, in this case there are two ocular witnesses whose evidence receives clear corroboration from the evidence of P Ws. 3 and 4. In such circumstances one need not look for a strong motive.

The two eye-witnesses P Ws 1 and 2 reside in their houses, a few feet away from the house of Valliammal. On hearing the cry of Valliammal, P Ws 1 and 2 rushed to the house of Valliammal and found the door closed. They peeped through the window and saw the Appellant actually cutting Valliammal with a knife resting her head on a water tank in the kitchen. They further saw the Appellant pushing her down and again cutting her. When the Appellant saw them, they were frightened and they ran away to their houses, PW 1 has stated in her evidence that she saw the occurrence through the eastern window. From the sketch Ex. P20 it is seen that there is no window on the east of the house of Valliammal, but there is a window in the north. It is an open window with no shutters. It is always open. But, wooden planks are nailed leaving large inter space between each plank, as seen from the photographs filed in this case. Obviously, PW 1 has committed a mistake in saying that she peeped through the eastern window. PW 2 is correct in saying that she peeped through the window on the north, along with her mother-in-law PW 1. She further stated that she along with PW 1, peeped through the same window. From the photographs it is seen that the window lies east of the door and is in the northern wall. It is patent that PW 1 meant to say that the window is east of the door. Ex. P16 the observation mahazar also shows that the window faces north. This discrepancy, in our view, does not to the root of the matter, as there is no window on the east at all. PW 3 who resides ten feet south of Valliammal''s house, also heard the noise which P Ws 1 and 2 heard. When she came near the house of Valliammal, she saw P Ws.1 and 2 running away. She went and opened the door and she found the Appellant inside the house. His dhothi was stained with blood On seeing PW 3 the Appellant ran the blade of MO 1 into the muscle of the right hand of PW 3 near the right elbow and the blade of MO 1 came on the other side of the hand of PW 3. The evidence of PW 8 the Doctor and the wound certificate Ex. P8 issued by him corroborate the evidence of PW 3 that she was stabbed by the Appellant. The evidence of PW 3 further shows that after stabbing her, the Appellant washed his hands and the weapon MO1(sic) in the water in a vessel kept before the house of Chinnan. After washing his hands, he got on a cycle M03 which he hired from PW5, and tried to escape. He was obstructed by PW 4, and others and he fell down and got injured by the same weapon which he used for cutting the deceased. The knife which he was having in his left hand, injured his right hand. PW 8 the Doctor, who examined the Appellant, also found a sharp injury about 3" x 2" in the medial aspect of right hand. The Appellant was apprehended and was bound with ropes and kept till PW 13 Village Administrative Officer arrived. After the arrival of PW13, the Appellant and the injured PW 3 were taken to the hospital by PW 13.P Ws 1 and 2 have seen the occurrence through the window. PW 1 who is aged 60 years, knew the Appellant for nearly 15 years. PW2 is the daughter-in-law of PW 1 and she also knew the Appellant. PW 3 actually saw the Appellant''s dhothi besmeared with blood. PW 3 was also stabbed by the Appellant with the same knife MO1. The eye-witnesses P Ws 1 and 2 and the other witness PW3 reside a few feet away from the house of Valliammal, deceased. They are, therefore neighbours of Valliammal. They are most natural witnesses to be able to depose to the occurrence as to what they have actually seen. They had no animus against the Appellant. Although it has been suggested to them that P Ws 1 and 2 are working on the farm-land of Velappa Udayar, that suggestion has been repelled by these witnesses. There is no reason to suppose that P Ws 1 to 3 would implicate the Appellant falsely.

It is next contended by the learned Counsel for the Appellant that PW3 and the Appellant were sent at different times at the hospital and there is no reason for doing so. PW14 admits that he sent separate memos to the hospital for medical examination of PW3 and the Appellant. PW14 sent PW3 to the hospital with P.C.1394 and the said constable later came to the scene and he sent the Appellant with PC. 1394 along with another constable to the hospital. From the copy of the Accident Register Ex.P9 it is seen that the Appellant was examined at 4-00 AM on 16th March, 1984 while PW3 was examined at 11-35 PM on 15th March, 1984. The Appellant was examined after four and half hours of the examination of PW3. PW3 was sent immediately to the hospital after her arrival at 8-30 P.M., while some delay might have occurred in the case of the Appellant in writing the mahazar Ex.P5 and recovering M Os 8 to 12 and it was only thereafter that the Appellant was sent to the hospital. This circumstance will not in any way affect the prosecution case.

It is next pointed out that there was delay in launching the complaint. The occurrence took place at about 1-30 p.m. PW13 was informed about the occurrence at 3-00 p.m. It is only after PW13 came to the scene, he took PW3 and the Appellant to the Police Station and they reached the Police Station at 8-30 p.m. and PW3 gave the complaint at 8-30 p.m. to the Sub-Inspector on the same day. Therefore, it cannot be said that the complaint was delayed. But, the learned Counsel for the Appellant invited our attention to the fact that the complaint reached the Magistrate at 11-00 a.m. on 16th March, 1984, the next day, and the person through whom the complaint was sent to the Magistrate has not been examined. It is not clear as to how far the Court is from the Police Station Here again, we are of the view that the prosecution case is not affected. The neighbours have known the Appellant. The Appellant has been apprehended immediately after the crime and was bound with ropes. It is only after PW13 came to the scene, he thought of taking PW3 and the Appellant to the Police Station. There was no need to hurry as the Appellant had been apprehended and as the death of Valliammal was instantaneous. MO1 knife which was seized by PW14 under a mahazar Ex.P17 was found to have been stained with human blood, as seen from Ex.P14, the report of the Chemical Examiner. MO2 the saree was also stained with human blood of A Group M. Os 8 to 12 which are dhothi, shirt, banian and underwear of the Appellant, were also stained with human blood of A group. Plaster pieces which were seized from the house of Valliammal, where her body was found to contain human blood of A group. These are some of the incriminating circumstances which are against the Appellant. These was not enough blood on MO 1 to know the group of the blood, as there is clear evidence that the Appellant washed the blood on MO1. That it was the Appellant who inflicted the fatal injury on the deceased has been clearly established by the following facts: (1) There was pre-existing animosity between the Appellant and his brother husband of the deceased in the matter of partition of the properties. PW6, the son of the deceased, says that the Appellant was asking for a share in the properties which are self acquisitions of his father. Velappa Udayar, and his mother, deceased, was not willing to give a share to him. That establishes the motive. (2) The Appellant was seen by P Ws 1 and 2 actually cutting the deceased Valliammal with the knife MO1, resting her head on the water-tank inside the kitchen, and pushing her down and then cutting her again. (3) PW3 came running after hearing the cry of Valliammal and saw P Ws 1 and 2 running away from the place, which corroborates the evidence of P Ws 1 and 2 that they got frightened, when the Appellant saw them, and ran away from the place. (4) PW3 opened the door of the house of the deceased and found the Appellant inside the house with bloodstained dhothi. The Appellant gave a stab on her right hand saying that he would kill her as he had killed the deceased. The evidence of PW8 corroborates the evidence of PW3. that MO1 has caused the injury found on PW3. (5) The Appellant who was trying to escape on a cycle hired from the shop of PW5, was apprehended and bound with ropes. (6) The Appellant made extra-judicial confession to PW4 that on account of the dispute in the partition he murdered the deceased, Valliammal. (7) MO1 was stained with human blood. These circumstances prove beyond all reasonable doubt that it was the Appellant who cut Valliammal and caused her death on 15th March, 1984. The prosecution, in our view, has proved the guilt of the Appellant beyond all reasonable doubt. The convictions are, therefore, correct and are confirmed.

As regards the sentence, we have our anxious thoughts. The injuries on the person of the deceased are too many and are also very serious. Ordinarily, we would not interfere with the sentence of death in such a case. But, our attention was invited to a decision in Machhi Singh and Others Vs. State of Punjab, . That was a case where four members of the household of one Amar Singh have become the target of the assailants, namely Machhi Singh, Mohinder Singh,Bajan Singh, Kashmir Singh, Chinna Singh. Machhi Singh and Mohinder Singh were each armed with a rifle, while others were armed with kirpans. The four victims were the wife and three sons of Amar Singh. Amar Singh on hearing the noise of the barking of a dog, woke up at 8-30 P.M. on 12th August, 1977, and was apprehensive of some trouble and therefore concealed himself in some sarkana reeds which were heaped. The eye witness to that occurrence was Amar Singh, and his daughter aged about ten years, who escaped from the murderous assault. Seven persons were prosecuted in connection with this incident. Five of them have been acquitted and only two persons, namely, Machhi Singh, and Mohinder Singh have been convicted for the murder and sentenced to death. In dealing with the case, their Lordships have laid down certain guidelines as to when a sentence of death has to be awarded. They are as follows:

(1) When the murder is committed in au extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house;

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death;

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

(2) When the murder is committed for a motive which evidences total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward; (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property or a ward or a person under the control of the murderer or vis-a-vis whom the murderer is in a dominating position or in a position of trust; (c) a murder is committed in the course of betrayal of the motherland.

(3) (a) When murder of a member of a scheduled caste or minority community, etc., is committed not for personal reasons, but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorize such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of ''bride burning'' and what are known as ''dowry-deaths'' op when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality are committed.

(5) When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation for murder, (b) a helpless woman or a person...............of old age or infirmity.

(c) When the victim is a person vis-a-vis whom the murderer is in a position of domination or trust.

(d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons.

In our view, the murder committed by the Appellant in the present case is not one which falls within the guidelines indicated by their Lordships of the Supreme Court in Machhi Singh and Others Vs. State of Punjab, . It is no doubt true that a woman has been murdered. It was pointed out that it was a dastardly attack on a helpless woman. The Appellant has chosen a time when there was no one in the house, and proceeded to commit the murder. But, still in our view, the murder was committed out of personal animosity, where the community at large is not affected. This is not one of those gravest of grave cases of extreme culpability. The learned Counsel for the Appellant has now filed an affidavit from the brother-in-law of the Appellant, which shows that the Appellant is aged 55 years and is having an aged wife and his daughter has undergone an open heart surgery. He further states that all the earnings of the Appellant were entrusted to his elder brother, Velappa Udayar, husband of the deceased, that he has not extended any help to the Appellant''s family and that the Appellant led a ''spotless life'' and had never been involved in any crime. Considering all these circumstances, we are of the view that in the instant case the extreme penalty of death is not called for. We accordingly confirm the convictions on all the three charges and set aside the sentence of death awarded u/s 302, Indian Penal Code and instead, sentence the Appellant to imprisonment for life. Except for the modification in the sentence, the appeal in other respects fails and is dismissed. The Reference is accordingly answered.