IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.04.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal.No.845 of 2007 Murugesan ... Appellant / Accused vs. State, rep. by Inspector of Police, Upper - Coonoor Police Station, Udagamandalam. (Cr.No.89/2003). ... Respondent/Complainant Appeal against the judgment of the learned District Sessions Judge, Udagamandalam, dated 24.11.2004 made in S.C.No.18 of 2004. For Appellant : Mr.S.Anantha Narayanan Appointed as Amicus Curiae For Respondent : Mr.N.R.Elango Additional Public Prosecutor * * * * * J U D G M E N T (Delivered by R.REGUPATHI,J.) The appellant has been convicted for an offence punishable under Section 302 I.P.C. for 3 counts and sentenced to imprisonment for life and a fine of Rs.1,000/- with default sentence under each count. The sentences were ordered to run consecutively. Aggrieved against the said conviction and sentence, the present appeal has been preferred. 2. As per the charge framed against the appellant, it is alleged that on 22.5.2003 at 7.30 a.m., the accused committed the death of the deceased, who is the wife of P.W.1 by strangulation. https://hcservices.ecourts.gov.in/hcservices/ Thereafter, on the same day, at 4.30 p.m., committed the death of his two children by administering Gramoxone pesticide and thereby, committed the offence of murder under three counts. The accused was questioned initially, but he has denied his complicity in the crime and pleaded innocence. Therefore, the trial of the case was taken up by the Court of Sessions. The prosecution, to substantiate its case examined P.Ws.1 to 11, marked Exs.1 to 33 and produced M.Os.1 to 11. 3.(a) P.W.1 is the husband of the deceased Lakshmi. He was living with the deceased along with his two daughters. The accused is his cousin and he used to come to his residence very often. The accused developed illicit intimacy with the deceased Lakshmi. There was a quarrel on account of that and therefore, he left the house and was living alone for 2 ½ years. On the occasion of his first daughter's puberty ceremony prior to the occurrence, he visited his residence and he came to know that the accused borrowed Rs.20,000/- from the deceased and did not repay the same. On account of that, there was a quarrel between the deceased and P.W.1. While so, on 22.5.2003, when he returned back from his work at 7.00 p.m. to his residence, he found the door closed and when it was opened, it was dark and with the help of a match box, he lit the match stick only to find the deceased lying dead. Shouting that somebody committed murder of his wife, he came out and informed his neighbours. Thereafter, he went to the police station and lodged a complaint, Ex.P.1, to the police. (b) P.W.9 is the Sub-Inspector of Police, Coonoor Police Station, who on receipt of Ex.P.1 from P.W.1, registered a case in Crime No.89 of 2003 for an offence punishable under Section 302 I.P.C. Ex.P.17 is the printed F.I.R. A copy of the same has been despatched to the Court of Judicial Magistrate and to the superior officers. (c) P.W.11, Inspector of Police, took up investigation on receipt of copy of F.I.R., Ex.P.1, at 8.00 p.m. and proceeded to the scene of occurrence, viz., residence of P.W.1, prepared observation mahazar, Ex.P.3, rough sketch, Ex.P.19, which was attested by P.W.6. He conducted inquest over the body of the deceased Lakshmi and Ex.P.20 is the inquest report. He recovered the jewels found on the dead body, viz., M.Os.6 to 8, jacket, M.O.9, under-garments – M.O.11, saree – M.O.11, under a cover of mahazar, Ex.P.20 and despatched the same to the Court. (d) P.W.2 is the wife of the accused and she was living along with the accused and two children, a boy and a girl aged 4 years and 1 year respectively. It is her evidence that the accused was having illicit intimacy with the deceased Lakshmi. She has also confirmed that the accused borrowed Rs.20,000/- from the deceased and that he also borrowed money from several other persons and could not repay https://hcservices.ecourts.gov.in/hcservices/ the money. She has further stated that on 21.5.2003, during night time, the deceased Lakshmi came to her residence and picked up quarrel for non-payment of money. This was informed to the accused when he returned from his work. The accused, thereafter, left from her residence to the residence of the deceased for the purpose of enquiry and stayed with the deceased during that night. It is her further evidence that the accused used to stay at the residence of the deceased on prior occasions also. On the next day, viz., on 22.5.2003, the accused returned back at 11.00 a.m. The accused accompanied the sister of P.W.2 to the bus stand and after he returned, he informed her that he assaulted the deceased Lakshmi and requested her to go and see and inform him back. Accordingly, she went to the residence of the deceased Lakshmi and found her lying dead. When she returned back, he found the accused at the bus stand at Coonoor at 7.30 p.m. and when she enquired about the children, it was replied by the accused that they are at home. When she entered her residence, she saw her two children lying dead and on enquiry, the accused replied that it was he, who administered pesticide to the children. Further, he has also confessed that he has done so, since he was facing problems on account of debts. P.W.2 shouted at him and crowd collected. P.W.3, who is the Secretary of the Village Sangam and other neighbours also collected at her residence. The accused repeated the confession to those persons also. She identified M.O.1 as the container of the pesticide and M.O.2 as the blanket which was covered over the bodies of the children. (e) P.W.3 took the accused and went to Aruvangadu police station and lodged a complaint, Ex.P.2 at about 2.30 a.m. P.W.10, Sub- Inspector of Police, on receipt of the complaint, registered a case in Crime No.54 of 2003 for an offence punishable under Section 302 I.P.C. Ex.P.18 is the printed F.I.R. and the same has been despatched to the Court and superior officers. (f) P.Ws.4 and 5 are the neighbours of P.W.1 and it is the evidence of P.W.4 that he had seen the accused on 21.5.2003 at 8.45 p.m. and on the next day also at 7.15 a.m. near the house of P.W.1. According to P.W.5, he had seen the accused on 22.5.2003 at 7.30 a.m. outside the house of P.W.1. (g) On 23.5.2003, the investigating officer, P.W.11, who was investigating the case in Crime No.89 of 2003, on receipt of the F.I.R. in Crime No.54 of 2003, reached the spot, viz., residence of P.W.2 and the accused and prepared observation mahazar, Ex.P.5, rough sketch, Ex.P.22 and conducted inquest over the dead bodies of the deceased children. Exs.P.23 and P.24 are the inquest reports. The seized material objects were sent to Court with a requisition, Ex.P.25 to forward them for chemical analysis. The viscera of the deceased Lakshmi was also sent to Court with a requisition Ex.P.26 for receiving the opinion of chemical analyst. The photographs of https://hcservices.ecourts.gov.in/hcservices/ the deceased Lakshmi and the deceased children were caused to be taken and Exs.P.30 to 33 series are the photographs and negatives respectively. Thereafter, the bodies were sent to the hospital with a requisition to the medical officer to conduct autopsy. (h) P.W.7, on receipt of the dead bodies of the deceased as well as the respective requisitions on 23.5.2003, commenced post-mortem on the dead body of deceased Parthiban, aged 4 years, at 1.00 p.m. and found a contusion 2 x 2 cm. over right cheek and 1 x 1 cm. abrasion over left cheek. He issued post-mortem certificate, Ex.P.11. Thereafter, he commenced post-mortem on the dead body of deceased Kousalya, aged 1 year and no external injuries were found. Ex.P.13 is the post-mortem certificate issued by the doctor. Lastly, he commenced the post-mortem on the dead body of deceased Lakshmi at 3.00 p.m. and found the following external injuries:- "1. Contusion and haematoma over mid neck 1 x 1 cm. 2. Abrasion 1 x 1 cm. over right cheek. 3. Abrasion 6 x 1/2 x 1/2 cm. extending from the mid line to below right ear. Ex.P.8 is the post-mortem certificate issued in respect of the injuries found on the deceased Lakshmi. The doctor reserved his opinion as to the cause of death of the deceased pending viscera reports and on receipt of the same, viz., Exs.P.9, P.12 and P.14, respectively, he opined that the deceased Lakshmi died due to asphyxia on account of throttling and the deceased children, Parthiban and Kousalya, died due to paraquat-di-chloride (gramoxone) poisoning. (i) In continuation of investigation, P.W.11 on 23.5.2003 at about 7.30 a.m., arrested the accused and recorded his confession statement in the presence of witnesses. He examined other witnesses and recorded their statements. On conclusion of investigation, he filed the final report against the accused under Section 302 I.P.C. (3 counts) on 25.8.2003. (j) The accused was questioned under Section 313 Cr.P.C. with regard to the incriminating materials, oral and documentary, produced by the prosecution, for which he denied the complicity of commission of crime and pleaded innocence. Neither oral nor documentary evidence was produced on the side of defence. The learned trial Judge, on perusal of the materials and on hearing the submissions of both sides, convicted and sentenced the accused as aforementioned. Hence, the present appeal. 4.1. Learned counsel appearing for the appellant submits that insofar as the occurrence which took place at the residence of P.W.1 is concerned, eye witnesses were not examined and though the https://hcservices.ecourts.gov.in/hcservices/ prosecution made an attempt to establish its case through the evidence of P.Ws.1 to 5, at the most, it would only establish the motive part of the occurrence. Insofar as the actual occurrence is concerned, it is the case of the prosecution that it had taken place inside the residence of P.W.1 and that the accused, after quarrelling with the wife of P.W.1, strangulated her and left the place after locking the door. For this purpose, the extra judicial confession allegedly given to P.W.2 and other witnesses were relied upon. But for the extra judicial confessions, there is no other material available and therefore, he submits that the prosecution has not substantiated its case. 4.2. In the alternative, he submits that even as per the case of the prosecution there was a quarrel prior to the commission of crime and if the extra judicial confession is accepted, it is the version of the accused that the deceased made an attempt to assault him with a reaper and only on provocation, he strangulated her and left her inside the residence and came out. Under such circumstances, since there are no other materials available to substantiate the actual part of the prosecution case with regard to the killing of wife of P.W.1 is concerned, if the extra judicial confession is believed, then the deceased, wife of P.W.1, would be the aggressor and only under such circumstances, the accused committed the offence and therefore, the offence under Section 302 I.P.C. is not substantiated. 4.3. Coming to the second part of the occurrence, viz., administering pesticide to the children of the accused is concerned, again, the prosecution relies on the extra judicial confession given to the wife as well as to the Secretary of Village Sangam, viz., P.Ws.2 and 3 respectively. If such confession statement of the accused is accepted, it is the version of the accused that he did so only on account of the pressure exerted due to non-payment of debts. Since the accused was not in normal mental condition, it must be presumed that he has done so on account of sustained provocation given by the creditors and the wife of P.W.1 and others and hence, an offence under Section 302 I.P.C. will not be made out. The learned counsel further submits that though it is a case of triple murder, one must not lose sight of the fact that the accused is a victim of circumstances and in a fit of anger, losing self-control, committed the offence and under such circumstances, since there is no premeditation and intention to commit the offence, though the accused was convicted and sentenced to imprisonment for life thrice, the order passed by the learned trial Judge to undergo the imprisonment consecutively is erroneous and thus, the learned counsel prayed for concurrent sentence. 5. Per contra, learned Additional Public Prosecutor submits that the first part of the occurrence, viz., killing of the wife of P.W.1 has been established not only through the motive put forth by the prosecution, but also through the evidence of P.Ws.4 and 5. They are https://hcservices.ecourts.gov.in/hcservices/ natural witnesses and they do not have any axe to grind against the accused. P.W.4 speaks about the presence of the accused on the day of occurrence in the morning as well as on the previous night. For the presence of the accused in front of the residence of P.W.1, it has been corroborated through the evidence of P.W.2, who is none other than the wife of the accused. Under normal circumstances, a wife will not support a prosecution against her husband and she may support the version of the prosecution though she would not divulge in full. But, in the case on hand, P.W.2 has given materials for the commission of offence in both the places. The extra judicial confession given by the accused to P.W.2 cannot be easily brushed aside. It is P.W.2, who ascertained the death of the deceased Lakshmi, wife of P.W.1 and after sending P.W.2 to the residence of P.W.1, the accused committed the death of his children by administering pesticide in her absence. She came to know about the death of her children only on returning back and at the time when she questioned the accused, the accused confessed that it was he, who killed the children due to the pressure of non-payment of debts. Immediately P.W.2 cried and a crowd collected, which attracted the notice of P.W.3 also. Even with whom, the accused confessed and it is P.W.3, who reported the occurrence to the police by taking the accused along with him. Through the medical officers, it has been proved beyond reasonable doubt that the death of the deceased, wife of P.W.1, was due to homicidal violence and the death of two children of the accused was due to pesticide poisoning. Therefore, it is submitted that the prosecution has proved its case beyond reasonable doubt and in view of the reason that he has committed triple murder, it is a fit case where the trial Court has convicted the appellant by imposing imprisonment for life thrice and it is also submitted that it is a fit case where the sentences must run consecutively. 6. We have perused the entire materials placed on record and heard the rival submissions made by the learned counsel appearing on both sides. 7. It is unfortunate that it is a case of triple murder. The accused after killing his concubine, on the same day committed murder of his tender children. The accused was having illicit intimacy with the wife of P.W.1 and in spite of persuasion by P.W.1, such a relationship continued and that is the reason why P.W.1 was living away from his wife for about 2 ½ years. P.W.1 returned back to the house thinking of his children by using the occasion of the puberty ceremony of his first daughter. It was only at that time, the present occurrence had taken place. The accused had borrowed money not only from the deceased Lakshmi, wife of P.W.1, but also from several other persons. On the previous day of the occurrence, the deceased Lakshmi, wife of P.W.1, visited the residence of P.W.2 and picked up quarrel for non-payment of the money due to her. When this was informed by P.W.2 to the accused, the accused left home to meet and persuade the deceased Lakshmi, wife of P.W.1. Though it is https://hcservices.ecourts.gov.in/hcservices/ stated in the extra judicial confession that the accused throttled the neck of the deceased Lakshmi since she made an attempt to assault him with a reaper, on persual of the materials, we find that the accused did not sustain any injury and moreover, in the confession of the accused, there is no whisper about such a reaper in the place of occurrence nor there is any material to show that it was recovered during the course of investigation. We also find corroborative material through the medical evidence that the death of the deceased Lakshmi was due to homicidal violence. The presence of the accused has been proved through the examination of neighbours, P.Ws.4 and 5. Under such circumstances, the presence and the overt act attributed to the accused with regard to the first occurrence has been established. 8. Insofar as the second part of the occurrence is concerned, we could see that the accused pre-planned before committing such an act. He administered poison on the children after sending P.W.2, his wife, out of her residence. Even when he met P.W.2 again, he did not divulge and only when P.W.2 returned home, she found the death of her two children and it was only at that time, the accused divulged about his commission of offence due to worries of non-payment of dues. On hearing the cries of P.W.2, P.W.3 and others gathered and even to P.W.3, the accused confessed the same. The extra judicial confessions given to P.Ws.2 and 3 are quite natural and convincing and in the present facts and circumstances of the case, we are of the considered view that the same could be accepted. While accepting the extra judicial confessions, we find abundant materials by way of corroboration through the evidence of P.Ws.1 to 5. We do not find any major contradictions between the extra judicial confession and the evidence of P.Ws.1 to 5. Under such circumstances, we are of the considered view that the conviction passed by the trial Court is well-founded and therefore, we have no hesitation to confirm the conviction. 9. Even insofar as the sentence part of it is concerned, once an offence of 302 I.P.C. is confirmed, imprisonment for life is normal. While looking at the mental background of the appellant on the day of occurrence and of the previous day, he was in a fit of pressure and worries due to non-payment of debts. Even on the previous day, he left his home to meet the deceased Lakshmi, wife of P.W.1, only to persuade her. It is a case of circumstantial evidence and as per the extra judicial confession, a quarrel ensued prior to the occurrence and under such circumstances, the first occurrence took place. It is also the case of the accused that due to the pressure exerted on account of non-payment of debts, he has administered the pesticide to his children. While considering all the facts and circumstances of the case, we are of the considered view that all the sentences of imprisonment for life could be ordered to run concurrently instead of consecutively. https://hcservices.ecourts.gov.in/hcservices/ 10. With the above modification in the sentence part of the impugned judgment, the appeal is dismissed. At this juncture, we place on record our encomium to Mr.S.Ananthanarayanan, learned counsel, for extending his assistance to this Court as amicus curiae in the disposal of this appeal. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar Sra To 1. The District Sessions Judge, Udagamandalam. 2. The District Collector, Nilgiris District at Udagamandalam. 3. The Director General of Police, Chennai. 4. The Inspector of Police, Upper-Coonoor Police Station, Udagamandalam. 5. The Superintendent, Central Prison, Coimbatore. 6. The Public Prosecutor, High Court, Madras. Crl.A.No.845 of 2007 AKR(CO) SRA (29/04/2008) https://hcservices.ecourts.gov.in/hcservices/