SUMATHI Vs. STATE

JUDGEMENT

(1.) THIS Appeal has been preferred against the Judgment in S. C. No. 474/2000 on the file of the Court of II Additional Sessions Judge, Chennai.

(2.) THE case of the prosecution in brief relevant for the purpose of deciding this Appeal are as follows: THE accused on 19. 11. 1999 between 3. 00 p. m. and 10. 00 p. m. had committed murder of her son aged 4 years and a daughter aged 2 years by administering Bacon poison (a pesticide) and thereafter, attempted to commit suicide. P. W. 4 is the husband of the accused, who after returning from his duty at about 10. 45 p. m. on the same day, came to the house found the door locked inside and inspite of his repeated knocking at the door, the door was not opened hence he broke open the door with the help of P. W. 7 and went inside the house and saw both his minor children lying dead on the bed and his wife, the accused herein, lying on the bed unconsciously. THEreafter, he took his wife to a private nursing home where first aid was given to the accused and on their advice, he took her to Raiyapettai Hospital and admitted her. After admitting her in the said Government Hospital , P. W. 4 informed p. W. 1, the father of the accused, who had preferred Ex. P. 1-complaint on 20. 11. 1999 before P. W. 12-Inspector of Police. P. W. 12, who had registered the case under Section 302 and 309 IPC, proceeded to the place of occurrence and prepared observation mahazar and a rough sketch Ex. P. 13 and conducted inquest on the corpse of the deceased minor Sairam and minor Indumathi and also seized the letter alleged to have been written by the accused to her father and send the corpse for postmortem and went to the Raiyapattai Hospital and arrested the accused on 30. 11. 1999 at about 2. 00 p. m. and recorded her confession statement-Ex. P. 14 and on the basis of the confession statement he recovered bacon spray container (M. O. 10) in the presence of the witnesses under ex. P. 15/mahazar. THE Doctor, who had conducted autopsy on the corpse of the children, was examined as P. W. 11 and he issued Ex. P. 7 and Ex. p. 9 postmortem certificates respectively. After examining the witnesses and recorded their statements and completing the investigation, P. W. 12 filed charge sheet against the accused.

(3.) TAKING into the piquant situation under which the accused was placed, which led her to take an extreme step of murdering her own children and also to put an end to her life, now derive us to consider whether the accused is liable to be punished under Section 302 IPC (2 counts) and under section 304, Part I, IPC. This position has been clarified in a Judgment of a division Bench of this Court reported in 1989 L. w. (Crl) 86 (Suyambukkani Vs. State of Tamil Nadu ). The facts of the said case are exactly similar to the present facts of the case, which are as follows: "the accused in the said case had caused the death of her two children aged 2 years and six months and also attempted to commit suicide by throwing the children and herself by jumping into a well. She was sentenced to undergo life imprisonment. The accused in that case took such an extreme step of murdering her children and also to commit suicide only because her marital life was not happy because of her husband's callousness. Her husband used not to give enough money for meeting the household expenses and also he became addict to drink, which resulted in poverty and destitution to the murder of the children. There were constant quarrel between the spouses and her husband never allowed her to go to her parents'house and never allowed her mother or brother to visit his house. The accused would endure the ill-treatments meted out to her, but it was hard to her to swallow the total absence of care and affection of the husband towards the children. Even when they were sick she will have to carry both of them herself and he would not oblige by carrying one of them. Under the above circumstances, the younger child has fallen sick for about a month. Then she managed to get permission to go to her parents'house, where she stayed for 10 days and came back on 25. 6. 1983. She was scolded for having remained for such a long time in her parents' house. She on the contrary on account of the continuous bad health of the small baby wanted to go back. Misunderstanding and quarrel between the spouses reached a climax and she was beaten, upon her return, then morning and evening on 26. 6. 1983 and also on the 27th in the morning and at the lunch time. The husband, who left the house after lunch came back home at about 9. 30 p. m. on the 27th and found the door open without anybody inside. Upon enquiry with neighbours he learnt that she left the house and his search proved fruitless. On the next morning, the children and accused were found in the well. Under such circumstances, it was held by the Division bench of this Court in the above said dictum as follows: "in this case, it is to be noted that more than the misery to which she was subjected, the accused was afflicted by the sufferings of her children. The father was not only indifferent, but even barbarous towards them. She got persuaded that after her death the children will be uncared of and would suffer innumerable torments and she could not reconcile with that idea. So it is after draining the cup of sorrow to the dregs that she decided to follow the Nallathangal's way. It is obvious that an act like that of the accused would not come within the meaning of murder, as contemplated in the Indian Penal Code. No doubt, the social fabric, as it prevails now in India, is responsible for the creation of situations like that of the accused. But the society will crumble, if each person even the mother who gave life to the children is to decide about life and death. The society expects the citizens, however ill placed they may be, to react to the situation, to call for help and to make an endeavour to survive. The act of the accused is obviously an offence in the contemplation of law. But it cannot be considered as an offence under section 302 IPC, which is the most heinous crime dealing with the most dangerous activities to the society, and the authors of which could be exterminated by the imposition of sentence to death. In fact, it would be incongruous to impose the sentence of death on a person who attempted to commit suicide and who was saved therefrom. 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 exceptions to Section 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 Section 304, Part I, ipc. " While allowing the above said Appeal, the learned Judges constituting the Division Bench after confirming the conviction under Section 309 IPC, convicted the accused under Section 304, Part I, IPC (2 counts)instead of under Section 302 IPC and sentenced to imprisonment for the period already undergone by the accused.