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Judgment
Ratnavel Pandian, J.—Accused 1 and 2 in Sessions Case No. 28 of 1983 on the file of the Additional Sessions Judge of North Arcot at Vellore are the appellants in Criminal Appeal No. 838 of 1983, while the juvenile accused Logammal alias Loga in Sessions Case No. 29 of 1983 on the file of the Same Court of Session is the appellant in Criminal Appeal No. 837 of 1983 As both these cases arises out of the same occurrence and the witnesses examined, the exhibits filed and the material objects marked in both the cases are the same, we are rendering a common judgment in both these appeals.
The appellants in C.A.838 of 1983 took their trial under two charges, viz., that on 12.3.1982 at about 9 p.m. at Kandhapodikaran Thope in Venkatapuram village within the limits of Vaniambadi Rural Police Station, the first accused caused death of Shanmugam by strangulating his neck and that A2, in the course of the lame transaction, in furtherance of the common intention of A1 in committing the murder of Shanmugam, squeezed the testicles of the deceased. The charge levelled against the juvenile accused (appellant in C.A.837 of 1983) is that the juvenile accused abetted the commission of the offence of murder of Shanmugam by the abovesaid adult accused, by holding the legs of deceased Shanmugham while the other two accused committed the offence of murder by strangulating and squeezing the testicles of the deceased. To substantiate the above charges in both the cases, the prosecution examined P.Ws.1 to 10, filed Exts. P1 to P26 and marked M.Os.1 to 8.
The brief facts of the case, as disclosed by the oral and documentary evidence, can be stated as follows: The first adult accused Kannammal is the wife of deceased Shanmugham. The second adult accused Perumal is the younger brother of Kannammal. The juvenile accused Logammal alias Loga is the third daughter of the accused Kannammal and the deceased. The deceased Shanmugam and Kannammal have three daughters of whom the 1st daughter Baby has been given marriage and she is residing with her husband. The second daughter''s name is Vasantha and the third daughter is the juvenile accused. The second and the third daughters have come of age and they were married at the time of the occurrence. The deceased was keeping a concubine by name Muniammal and was residing with her at Vaniambadi for some period. The son-in-law of the deceased and another went to Vaniambadi and brought the deceased to Venkatapuram where his family was residing and sent Muniammal to her mother''s house. Deceased Shanmugam who was having a vicious character, made overtures towards his daughter Vasantha and attempted to hive sexual relationship with her. Kannammal, on being aggrieved at the conduct of her husband, sent her daughter Vasantha to the house of her brother. Four days before this occurrence, deceased Shanmugam had been to Vaniambadi to sell Jaggery. But he did not return home. It was learnt by the members of the deceased''s family that the deceased had gone in search of Muniammal, his concubine, who was in Mittalam at that time. The accused Kannammal complained about this to P.W. 2. P.W. 2, who had been to Mittalam, met deceased Shanmugham and reprimanded him. On the night of the occurrence, the deceased in a drunken mood went to his house. A wordy quarrel ensued between the accused Kannammal and the deceased during which the accused Kannammal found fault with the conduct of her husband and reprimanded him saying that it was not fair on the part of the deceased to keep a concubine and live an irresponsible life without caring for the family. Deceased Shanmugam got angry and beat Kannammal and made overtures towards hit daughter Logammal alias Loga, the juvenile accused, inviting her to take bed and have sexual intercourse with him. The juvenile accused resented this and complained this matter to her maternal uncle, viz., the second adult accused Perumal, who was in a nearby tope, and brought him to the house. Perumal also scolded the deceased. Meanwhile, a surcharged tension prevailed, resulting in a quarrel between Kannammal and Shanmugam. Kannammal pushed down Shanmugam, sat on his chest and strangulated him. At that time, the juvenile accused held the legs of the deceased. The accused Perumal squeezed the testicles of the deceased. The deceased Shanmugam died. Then the accused tied a rope around the neck of the deceased and hanged his body from the roof of the cattle shed.
By about 12 midnight the accused Kannammal and the juvenile accused went to the house of P.W. 2 and informed him that the deceased had committed suicide by hanging. P.W. 2, accompanied by one Chinnathambi Gounder, went to the cattle shed and found deceased Shanmugam hanging by a rope. Then, all the accused untied the rope and laid the dead body of Shanmugam on a coir cot. The accused Kannammal burnt the rope. When P.W. 2 asked her as to why she was doing so, Kannammal replied that such a rope should not be kept in the house lest there would be some more similar occurrences. Then P.W. 2 went to his house. When P.W. 2 went to the house of the accused on the next morning at 9 p.m. (on the 13th) a crowd of the villagers had collected there. P.W. 2 found certain injuries on the forehead, eye-brow and cheek of the deceased. On that day, the brother of the deceased by name Bheeman, examined as P.W. 3, on receipt of the information about the death of his brother, came to the scene village at about 4 p.m. By about 9.30 p.m., the other brothers of the deceased arrived at the scene house. All the brothers of the deceased, on seeing the injuries on the person of the deceased, picked up a quarrel with the accused persons, saying that it was not a case of suicide but one of homicide, and charged the accused that they had beaten him to death. P.W. 2 took the accused Kannammal aside and enquired her. Kannammal made a clean breast of the whole occurrence, confessing that she strangulated the deceased by sitting on his chest while the juvenile accused held the legs of the deceased and the accused Perumal squeezed the testicles of the deceased, on being provoked by the utterance of the deceased saying that be wanted to have sexual intercourse with the Juvenile accused Loga who was in the prime of youth, and that thereafter they hanged the dead body in order to give an appearance that it was a case of suicide. She added further that she suppressed the real fact out of fear. Immediately P.W. 2 directed P.W. 3 to go to the police station and lay a complaint. At that time it was 12 midnight.
Accordingly, P.W. 3 went to Vaniambadi at about 4 a.m. on 14.3.1982 and orally complained to P.W. 1 the Village Administrative Officer, about the occurrence. P.W. 1 sent P.W. 3 to the scene village saying that he would come to the scene. At about 7 a.m. P.W. 1 taking the village vettian P.W. 6 with him, went to the scene place and found the dead body of Shanmugam. He recorded the statement of accused Kannammal under Ex. P1 and then prepared his report Ex P2. He sent Exs. P1 and P2 to Vaniambadi Taluk Police Station through P.W. 6, P.W. 9, Sub-Inspector of Police of the said station, received Exs. P1 and P2 and registered a case in Crime No. 24 of 1982 under Ss.302 and 201, I.P.C., and prepared the printed F.I.R. under Ex. P24 and sent the same to the Court. Copies of Ex. P24 were sent to all superior officials.
P.W. 10, the Inspector of Police, received the express report at about 10.15 a.m. and reached the scene place by about 10.45 a.m. He inspected the scene place and prepared the observation mahazar Ex. P3 in the presence of P.Ws.1 and 2 and also drew a rough sketch of the scene. Ex P23. He caused certain photographs to be taken at the scene place. Between 11.30 a.m. and 1.45 p.m. on 14.3.1982 he held inquest over the dead body of the deceased examined P.Ws 1 and 2 and others and prepared the inquest report Ex. P26. After the inquest he entrusted the dead body with a constable P.W. 5 with a requisition Ex. P4 addressed to the medical officer to conduct autopsy on the dead body of the deceased. The adult accused and the juvenile accused were arrested by about 1.45 p.m. and sent for remand. As the dead body was highly decomposed, the Inspector requested the medical officer under Ex. P4 to conduct the post-mortem examination at the scene house itself.
P.W. 4, Assistant Surgeon attached to the Government Hospital, Vaniambabi, on receipt of Ex. P4 from P.W. 10, conducted the post-mortem examination on the body of the deceased at about 2.45 p.m. on 14.3.1982 at the scene place itself and found the following appearances:
A fairly nourished male body was lying on its back with both lower and upper limbs extended and R.M. passed off in all four limbs Blisters and peeling of cuticle were seen over the upper limbs, neck, chest, abdomen and back, when the body as a whole was bloated. Frothy, fluid blood was seen discharging through nose. Lips were swollen and tongue was protruding between teeth. Penis was bloated and erect. On sectioning echymoses over the body of penis seen. Scrotal sac was distended Echymoses over the lower poles of both testes seen. Cyanosis of finger nails seen.
The medical officer found on the body the following external injuries:
(1) Three abrasions each of 2 cm. x 1 � cm. were placed over the right side of forehead. (2) An abrasion 2 cm. x 1 cm. over right temple seen. (3) An abrasion 1 cm x � cm. over the right eye-brow obliquely. (4) A dark bluish ligature mark of 1� cm. x 9 cm. extending through the right side of neck obliquely upwards. (5) An abrasion of 4 cms. x 1� cms over the back of right knee was seen. (6) Multiple small abrasions over both the shoulder blades were seen. (7) On dissection of the neck, echymosis of 4 cm. x 2 cm. on the right side of neck 4 cms. below the right border of mandible was seen. (9) Echymosis of size 7 cms. x 3 cms. over the left side of neck was seen.
On internal examination, the doctor found both the lungs to be congested. The heart contained dark fluid blood. The hyoid bone was broken. The stomach contained partly digested rice particles of about 350 gms. Mucosa was congested. The bladder was empty. The stomach and its contends, the intestine and its contends, the liver and kidney, the hyoid bone and the saturated solution of sodium chloride were preserved and sent for chemical analysis. After receipt of Ex. P7, the opinion of the Assistant Professor, Department of Forensic Medicine, Madras Medical College, P.W. 4 gave his final opinion that the deceased Shanmugham would appear to have died of asphyxia due to throttling when he was under the influence of ethyl. Ex. P5 is the post-mortem certificate and Ex. P8 is his final opinion.
After the post-mortem examination, P.W. 5, with whom the dead body was entrusted, recovered M.Os.1 to 8 from the body of the deceased and handed them over at the police station. By about 1.45 p.m. on 14th March, 1982, P.W. 10 arrested both the adult accused and the juvenile accused and seat them on the next day for remand. He also gave a requisition Ex. P9, addressed to the Chief Judicial Magistrate of North Arcot at Vellore, requesting the Magistrate to make the necessary arrangements for recording the confessional statements of the accused under S.164, Crl.P.C. The learned Chief Judicial Magistrate forwarded the requisition to the Judicial Second Class Magistrate No. 1, Tirupattur, who, after observing all the statutory formalities and administering the necessary preliminary and final warnings and also affording sufficient time for reflection, recorded the statement of the juvenile under S.164, Crl.P.C. under. Ex. P12 on 20.3.1982. Exs. P10 and P11 are the preliminary and final warnings. He also attested the statutory certificate under Exs.P13 to Ex. P12. Similarly, he recorded the confessional statement of the adult accused Kannammal on the same day after observing all the statutory formalities as in the case of the juvenile accused. Exs. P14 and P15 are preliminary and final warnings and Ex. P16 is the confessional statement and Ex. P.17 is the statutory certificate appended to Ex. P16. On the same day, the confessional statement of the adult accused Perumal was also recorded after observing all the statutory formalities as in the other two cases. Exs. P18 and P19 are the preliminary and final warning and Ex. P20 is the confessional statement Ex. P21 is the statutory certificate attached to it. After completing the investigation, P.W. 10 laid the charge sheet against the adult accused and separately against the juvenile accused on 29.10.1982.
The adult accused Kannammal denied the entire evidence let in on the side of the prosecution and added that on the date of the occurrence her husband, the deceased, came to the house staggering in a drunken mood and uttered all the filthy language, that after taking his food, be completely stripped off Logammal and attempted to commit rape on her, that at that time the accused Kannammal, who was in a highly distressed condition, caught hold of the neck of the deceased and pushed him out of the house in order to save the modesty of her daughter and thereafter locked the door from inside and slept, that at about 12 midnight when she and her daughter (juvenile accused) came out of the house on hearing the cry of the cattle from the cattle shed, she found in the cattle shed the accused having committed suicide by hanging and that P.W. 2 (Raju) was brought there, that thereafter the dead body of the deceased was lying, that at about 10 p.m. P.W. 3 cams, that both P.Ws. 2 and 3 put their heads together and made a complaint, that they took her and her daughter Logammal to the police station where they were beaten and subjected to inhuman treatment, that the police took their signature on a written paper, that A2 came there only for condolence, that she has now been falsely implicated in this case and that they threatened her to give the S.164 statement as tutored by the police before the Magistrate.
The second accused has denied the evidence and stated that be came only for condolence, and that the police who were in the scene of occurrence subjected him to inhuman treatment and ultimately threatened and made him give the S.164 statement as tutored by the police before the Magistrate.
The juvenile accused denied the evidence and her complicity in the offence in question.
The learned trial Judge, mainly relying upon the confessional statements of both the adult accused and the juvenile accused and the extra-judicial confessional statement given by the accused Kannammal before P.W. 2, the medical evidence and the conduct of Kannammal incompletely destroying the rope used for hanging the deceased by setting fire to the rope has found the three accused guilty of the respective offences and convicted and sentenced them as aforementioned. Hence those two appeals.
Mr. V. Gopinath, Learned Counsel appearing for the appellants in both the appeals, raised the following contentions:
The learned trial Judge has committed an illegality in allowing the prosecution to mark the confessional statement of the juvenile accused Logammal in the case of the two adult accused in S.C. 28 of 1983, and mark the confessional statements of both the adult accused in the case of the juvenile accused in S.C. 29 of 1983, and in placing much reliance on the confessional statements of all the three accused in both the case when the adult accused and the juvenile accused were separately tried.
The learned trial Judge has committed a glaring illegality in the case of the juvenile accused by taking into consideration and relying upon the extra-judicial confession said to have been made by the accused Kannammal to P.W. 2 and in using the extra judicial confession of Kannammal as against the adult accused Perumal.
As the confessional statements of the juvenile accused and both the adult accused marked as Exs. P12, P16 and P20, which are now retracted by the makers of those statements, do not receive general corroboration with regard to the important incidents mentioned in the confessions, the trial Judge ought to have rejected those confessional statements from consideration.
The evidence of P.W. 2 is not worthy of acceptence and as such the trial Magistrate ought not to have placed any reliance on the alleged extra-judicial confessions.
The learned trial Judge ought to have accepted the case of the defence that the deceased had committed suicide by hanging.
The Learned Counsel would finally submit that even if the entire evidence of the prosecution is accepted, the accused would be entitled to an acquittal by the invocation of S. 100, I.P.C., since the material placed on record would clearly and demonstrably show that the deceased committed an assault on the juvenile accused Logammal with the intention of committing rape on her.
Now, we shall examine the evidence under the various heads and see whether the prosecution has first of all made out its case and even if the prosecution evidence is accepted, whether all the accused would be entitled to an acquittal on the ground that they had committed the murder in exercise of the right of private defence of the body of Logammal who is said to have bees assaulted by the deceased in his attempt to commit rape on her.
Motive for the occurrence: The evidence recorded clearly shows that the deceased, who was keeping a concubine by name Muniammal and who was reluctant to leave her company in spite of several protests and request made by Kannammal and P.W. 2, was reprimanded by Kannammal and others. It is the evidence on the side of the prosecution itself that the deceased, who was having a vicious character, made overtures even towards his daughter Vasantha and made futile attempts to have sexual relationship with her about four or five days before this occurrence. The adult accused Kannammal, who is the unfortunate mother of three daughters inclusive of the said Vasantha and the juvenile accused, finding on other way to save the modesty of her daughter Vasantha, sent her away to her brother house. This part of the case is clearly borne out from the confessional statements of the three accused.
x x x [Portion omitted--Ed.]
The above extracted confessions clearly show the lewd and lascivious behaviour and sexual perversity and depravity on the part of the deceased in violation of all moral principles and civilisation. Further, according to the prosecution, since the deceased had committed an assault on his youngest daughter Logammal and attempted to commit rape on her, as seen from the confessional statement of Perumal as well as Logammal, the offence is said to have been committed by the accused. Therefore, even as per the evidence relied upon by the prosecution, the offence was committed on account of the gross indecent, uncivilized and incestuous behaviour of the deceased in the very presence of the mother of the juvenile accused Logammal. Thus, the prosecution has put forth the motive for the above murder on the part of all the three accused by relying upon the oral and documentary evidence, viz., Exs.P12, P16 and P20.
As rightly contended Mr. V. Gopinath, the learned trial Judge ought not to have permitted the prosecution to mark the confessional statement of the juvenile Ex. P12 in S.C. 28/83 as the juvenile accused was not tried as a co-accused with the two adult accused. Likewise, the confessional statements of both the adult accused recorded under Exs.P16 and P20 should not have been permitted to be marked in S.C. 29/83, in which case the juvenile accused took a separate trial. To that extent there is an illegality in both the judgments not only in the marking of the three confessional statements in both the cases, but also in heavily relying upon them for recording the convictions.
Further, the contention of the Learned Counsel that the trial Court ought not to have relied upon the portion of the evidence of P.W. 2 speaking about the extra-judicial confession said to have been made by accused Kannammal, as against the juvenile accused in S.C. 29 of 1983 and as against accused Perumal in S.C. 28 of 1983, also assumes much significance and we see great force in the contention of the Learned Counsel.
The next submission of the Learned Counsel is that these confessions Exs. P12, P16 and P20 do not receive corroboration froma independent soirees of evidence on general particulars. Alt the three accused have retracted from their judicial confessions. It is settled law that a retracted confession can be the basis for recording a conviction provided that confession is free from any infirmity and receives general corroboration with regard to the important incidents mentioned in the confession. The evidence of P.Ws.2 and 3, in our view, corroborates a material part of the confessions of the accused, in that their evidence supports the case of the prosecution not only so far as the motive is concerned but also in regard to the injuries found on the deceased. The medical evidence given by P.W. 4 also corroborates the judicial confessions of all the three accused. Therefore, the learned trial Judge cannot be said to have committed any illegality in placing reliance on the judicial confessions of the accused except to the extent of the illegality mentioned in the previous paragraph, viz., relying upon the confession of Logammal in the case filed against the two adult accused, and the confessions of the two adult accused in the case filed against Logammal. The only question for our consideration is whether the accused have made themselves liable to be punished for the offence of murder as found by the learned trial Judge or whether the accused are entitled to claim the benefit of Exception I to S.300 I.P.C., or entitled tog complete acquittal by virtue of S.100, I.P.C.
We shall now examine the evidence as to the proximate cause to commit the murder of the deceased on the illfated day so that this Court can arrive at the conclusion as to whether the offence is one of murder simpliciter or an offence amounting to culpable homicide not amounting to murder or one falling under the general exceptions enumerated in S.100, I.P.C.
P.W. 2 has stated in his chief-examination that the accused Kannammal confessed to him stating that the deceased made overtures towards the juvenile accused and invited her to submit herself to his carnal desire and that if he had sexual intercourse with the juvenile accused, he would get the maximum pleasure, and that was the reason why she had committed the murder. P.W. 1 also had admitted in the cross-examination that he told the police that Kannammal told him that on a previous occasion the deceased expressed his lascivious desire to have sexual intercourse with his second daughter Vasantha and also invited her to share bed with him, that Vasantha left the house and went to her brothers''s house, that on the date of the occurence again the deceased, openly expressing that he would be drawing the maximum pleasure if he had sexual intercourse with the juvenile accused Logammal, invited her to lie with him and that it was at this point of time the accused committed the murder of the deceased. In the confessional statement Ex. P12 the juvenile accused has stated that the deceased frequently asked her to have sexual intercourse with him and that she had made a complaint to her mother about the conduct of her father.
x x x [Portion omitted--Ed.]
She has also further stated that on the Friday privious to the occurrence, the deceased made a similar abominable attempt by calling Vasantha to share bed with him and there fore Vasantha ran away from the house to her brother''s house and that when accused Kannammal found fault with the deceased as to why he had been misbehaving like that towards his own daughters, the deceased retorted asking her as to who she was to question him. Coming to the occurrence in question, the juvenile accused has stated that since the father (the deceased) himself had made overtures towards her, his own daughter, and asked her to share bed with him, they committed the murder.
The accused Kannammal in Ex. P16 has stated that on the date of the occurrence the deceaed invited his daughter Logammal to lie with him on a cot so that ha could rape her.
x x [Portion omitted--Ed.]
She has also stated that the deceased had made similar overtures towards Vasantha also. Accused Perumal in Ex. P20 has given the full details as to what had happened on the night of the occurrence. According to him, Vasantha to whom the deceased expressed his desire to have the incestual sexual relationship, escaped from the house and ran away; on the dace of the occurrence the deceased caught hold of the hands of the juvenile accused Logammal and dragged her to the bed; Kannammal and himself could not bear the sight; he thereafter asked the juvenile accused Logammal to get up and in those circumstances they committed the murder of the deceased.
x xx [Portion omitted--Ed.]
It is stated in Ex. P1 that the deceased was drunk on that night. In Ex. P12, Logammal has stated that the deceased was drunk. The medical officer P.W. 4 his deposed that the deceased, at the time of the occurrence, should have been under the influence of alcohol. The Assistant Surgeon of the Government Pentland Hospital Vellore, in his final opinion Ex. P8, has stated that the deceased would appear to have died of asphyxia due to throttling when he was under the influence of ethyl alcohol. Therefore, from the above evidence it is clear that the deceased was under the influence of alcohol and that the deceased, who had no respect for any morality, had gone even to the extent of assaulting his own daughter Logammal aged about 14 with the intention of committing rape on her and, in spite of the protest made by Kannammal, the mother of the juvenile, the deceased had dragged the girl to the cot, and that it was only in such a situation, the accused finding no other way but to put an end to the life of the deceased, in order to protect the modesty and save the girl (Logammal) from the abhorent sexual act of the deceased, had committed the murder of the deceased. There is also another attending circumstances in this case, viz., the injuries to private parts of the deceased, which go to probabilise that the deceased was attacked on that part of the body because of his attempt to commit rape on his own daughter. It is very difficult to visualize the degree of the distressed condition in which the accused persons were placed, which made them attack the deceased in that manner. It would be uncharitable to say that the accused should have waited till the deceased actually lay on the juvenile accused Logammal and then only attacked him. Would any mother tolerate the sight of her daughter being subjected to forcible sexual assault by no less a person than the father himself, no matter that the aggressor be her own husband? When a woman sees her daughter being subjected to an incestuous sexual outrage in her very presence by any one, even if that be her husband, i.e., the girl''s father, it is common knowledge that her blood would boil and she would spring on the assailant like a panther and suck out his blood even at the risk of her life. When the facts of the present case are examined carefully, we feel that the accused had no other go except to put an end to the life of the heartless, mean, cruel and beast like deceased in order to protect and save the modesty of the girl (the juvenile accused) which they naturally valued more than the life of the deceased.
S.100, I.P.C., justifies the killing of an assailant due to the apprehension of any one of the atrocious crimes enumerated in that section. For the application of this section, four cardinal conditions should have existed before the taking of the life of a person is justified on the plea of self defence. Firstly, the accused must be free from fault in bringing the encounter. Secondly, there must be present an impending peril to life or great bodily harm either really or so appearent at create an honest belief on an existing necessity. Thirdly, there must be no safe or reasonable mode of escape by retreat. Fourthly, there must have been a necessity for taking away the life of the assailant.
It is true that the right of private defence laid down in S.100 is a restricted right and has to be subjected to the provision of S.99. In the present case, the assault made by the accused upon the deceased while the latter was endeavouring to commit rape on the juvenile accused, in our opinion, brings the case within the ambit of S. 100, even as qualified by S.99. See Suraj Narain Lal Vs. Emperor, .
In view of the above discussion, we hold that the accused wwre justified in putting an end to the life of the deceased and are entitled to the benefit of Cl.(3) of S.100, I.P.C., and as such entitled to a complete acquittal.
In the result, both the appeals are allowed, the convictions and sentences recorded by the trial Court against the three accused areset aside and all the accused are acquitted.