MR.JUSTICE S.VAIDYANATHAN and THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN R.T.(MD)No.5 of 2021 and CRL.A.(MD)No.475 of 2021 R.T.(MD)No.5 of 2021:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Judgment Reserved on : 23.11.2021
Judgment Pronounced on : 10.12.2021

CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

R.T.(MD)No.5 of 2021
and
CRL.A.(MD)No.475 of 2021

R.T.(MD)No.5 of 2021:

State Rep. by
The Inspector of Police,
Malaiyur Police Station,
Pudukkottai District.
(Crime No.27 of 2018) … Complainant

-vs-

Anand … Respondent

Referred Trial under Section 366 of the Code of Criminal Procedure on the judgment of the learned Sessions Judge, (Mahila Court), Pudukkottai, in S.C.No.133 of 2018, dated 01.10.2021.
For Complainant :: Mr.Hassan Mohammed Jinnah
State Public Prosecutor
For Respondent :: Mr.P.Ganapathi Subramanian

CRL.A .(MD)No.475 of 2021:

Anand … Appellant/
Sole Accused

-vs-

State Rep. by
The Inspector of Police,
Malaiyur Police Station,
Pudukkottai District.
(Crime No.27 of 2018) … Respondent/
Complainant

Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the judgment of the learned Sessions Judge, (Mahila Court), Pudukkottai, in S.C.No.133 of 2018, dated 01.10.2021.

For Appellant :: Mr.P.Ganapathi Subramanian

For Respondent :: Mr.Hassan Mohammed Jinnah
State Public Prosecutor

COMMON JUDGMENT

S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.

This is a case of matricide. Thilagarani, the mother aged about 45 years was done to death by Anand her elder son aged about 23 years.

2. The occurrence took place on 18/03/2018 at about 8.30 am in a public place, while Thilagarani the victim of the crime was waiting along with her mother ( Lakshmi) and her younger son (Muthu) at the bus – stop on Maravanpatti Main Road, Karambakudi, Pudukottai District.

3. Previous enmity over a property is attributed as motive for the murder. The accused was charged for offence under section 302 IPC. After trial, the court held the accused guilty of offence punishable under section 302 IPC. Convicted and sentenced to DEATH and to pay a fine of Rs.50,000/- in default, to undergo 2 years S.I. Ordered to hang by neck till death subject to confirmation of High Court in terms of section 366 of Cr.P.C.

4. In reverence to section 366 Cr.P.C, the judgment of the trial court is submitted to the High Court for confirmation. Same is taken on file as RT 5/2021. The aggrieved accused has filed appeal against conviction in Crl.A.(MD).No.475/2021.

5. The learned Public Prosecutor took us to the evidences, the relevant portions of the depositions of P.W.1 to P.W.12 and the exhibits P1 to P16 and submitted that the case of the prosecution was established through eye witnesses, the extra judicial confession of the accused and recovery of material objects used for the crime.

6. Per contra, the learned counsel for the respondent/accused submitted that the prosecution has failed to prove motive and the evidence of P.W.1 to P.W.3, who claims to be the eye witnesses to the occurrence and failed to support the prosecution in entirity, hence P.W.1 was treated hostile and the rest of the witnesses for prosecution are not reliable witnesses. Therefore, benefit of doubt must be extended to the accused. In any event, this is not a rarest of rare case to impose death penalty.

7. The case of the prosecution unfurled through witnesses is that on 18/03/2018 at about 8.30 am PW-1 Lakshmi, her daughter Thilagarani ( deceased – victim) and her grand son Muthu were standing in the bus stop to go to Pudukottai Church. At that time, Anand ( son of the deceased – victim) came in his motor bike, parked it near a mutton stall near the bus stop and went behind Thilagarani, attacked on her head with an aruval (billhook). When Thilagarani tried to cover her head from further attack, the next blow hit at her left hand. Her thumb and index finger of the left hand got severed. The third blow which fell on her right hand severed her thumb and 3 fingers except the little finger of her right hand. Thilagrani collapsed and fell down. The accused kept his leg on the chest of his mother and cut her head. Took away the severed head in a wire bag and left in his motorbike bearing registration number TN 55 AY 1112. The incident was witnessed by Chinnaiah (PW-2) the owner of the Tea Shop near the bus stop. Srinivasan (PW-3) and Kannaiah (not examined) who were taking tea in Chinnaiah tea shop.

8. On the same day at about 1.00 pm, the accused went to the office of the VAO at Karambakudi. He produced the severed head of Thilagarani and the Aruval. He confessed to PW-5 Suresh, the VAO of Ambukoil Village who was in additional charge of Karambakudi village, that due to property dispute he murdered his mother near the Maravanpatti bus stop. The statement of the accused was reduced into writing by the VAO in the presence of his assistant Moorthy. The accused signed the statement (Ex P-4). Thereafter, the accused was taken to the Malaiyur police Station at about 2.30 pm and produced before the Sub-Inspector of Police along with the Aruval (M.O 1), the wire bag used for carrying the severed head of the deceased (M.O-2) and the motor bike used by the accused (M.O.-3).
9. In between, Lakshmi who is the mother of the victim, went to Malaiyur Police Station at about 9.30 am and informed about the incident orally to the Sub-Inspector of Police (PW-10). The SI of police in turn registered FIR ( Ex P-6) in Cr.No.27/2019 against the accused for offence under section 302 IPC and forwarded the same to the Judicial Magistrate at Alangudi and placed the FIR copy to the Inspector of Police (PW-12) for investigation.

10. Thiru Karthigaisamy (PW-12) Inspector of Police attached to Karambakudi Police Station took up the investigation visited the spot at 10.45 am. Inspected the scene of crime. Prepared the observation mahazar (Ex P-2) and seized mud with and without blood stains ( M.O 4 and M.O.5); A pair of slipper( M.O 6) and the hair of the deceased (M.O 7) from the SOC and prepared seizure mahazar (Ex P-3) in the presence of the witnesses Selvaraj (PW-4) and Suriyamoorthy. The rough sketch of the Scene of occurrence drawn by Investigating Officer in the presence of the witnesses is EX.P-8. He conducted inquest regarding the headless corpse between 12.00 noon to 2.00 pm and prepared the inquest report (Ex P-9). Entrusted women constable Agila (PW-8) with a request letter to the Pudukottai Government Hospital and arranged for taking the corpse for autopsy. Returned back to the Police Station, PW-12 recorded the statement of accused. Seized the severed head, wire bag, motor cycle, the aruval (billhook) and the blood stained lungi (M.O.8) and shirt (M.O.9) of the accused in the presence of Selladurai VAO (PW-6) and his Assistant Balakrishnan under the mahazar Ex P-5, at about 15.45 hrs. On the same day, the accused was arrested and produced before the Judicial Magistrate for judicial remand.

11. In the post mortem report Ex.P7 the following external injuries were found on the deceased body.
External Injuries:
“1. Scalp: A star shaped chop wound with six different sized projections of the star shaped wound, clearn contused margins, wide gaping between the chopped tissues and exposing the underlying bones of the skull, situated over the vertex. The star shaped wound was formed due to the intersection of three chop wounds meeting at one point. Description of those three chop wounds are as follows:
a) First chop wound, measuring 15 cms x 03 cms x skull bone deep situated at a point 06 cm from the external occipital protruberance crossing the right parietal and left temporal region and ending at a point 08 cm from the left eyebrow.
b) Second chop wound measuring 12 cms x 03 cms x skull bone deep situated at a point 08 cm from the external occipital protruberance crossing the left parietal and right temporal region and ending at a point 09 cm from the right eye brow.
c) Third chop wound measuring 10 cms x 03 cms x skull bone deep situated at a point 07 cm from the right mastoid protruberance crossing the right parietal and left parietal region and ending at a point 09 cm from the left mastoid protruberance.

All these three chop wounds intersected at appoint 15 cms above the external occipital protruberance over the vertex, thereby giving the appearance of a star shped chop wound.

2. Decapitation at the level of C3-C4 vertebra, exposing cut
ends of the muscles, vessels, nerves and fractured ends of
vertebra, blood effused around.

3. Stab wound measuring 04 cms x 01 cm x chest cavity deep
present over back of middle of chest situated 12 cms from
the right shoulder joint.

4. Stab wound measuring 03 cms x 0.5 cm x chest cavity deep
present over back of right side of chest situated 02 cms
below the injury no.3.

5. Stab wound measuring 05 cms x 02 cm x chest cavity deep
present over back of right side of chest situated 07 cms
below the injury no.4.

6. Stab wound measuring 07 cms x 02 cms x 1 cm deep
present over back of left side of chest situated 04 cms below
the left shoulder joint.

7. Stab wound measuring 06 cms x 01 cm x 02 cms deep
present over back of left side of chest situated 07 cms to the
right side of injury no.6.

8. Stab wound measuring 09 cms x 03 cms x underlying muscle
deep present over top of left shoulder joint.

9. Thumb, index finger and thenar eminence of left hand
chopped off together exposing underlying muscles, vessels,
nerves and chopped ends of bones, blood effused around.

10.Distal Phalanx of right middle finger and distal and
intermediate phalanx of right ring finger chopped off
exposing underlying muscles, vessels, nerves and chopped
ends of bones, blood effused around.

11. Thumb and index finger of right hand chopped at the level
of distal phalanx with skin connected to the proximal
structures exposing underlying muscles, vessels, nerves
and chopped ends of bones, blood effused around.”

12. The cross-examination of the eye witnesses and witnesses to recovery of material objects had not impeached much to shake their credibility. Therefore, the contention by the learned counsel for the accused/appellant that failure to prove motive or non-examination of the deceased younger son Muthu and delay in forwarding M.O’s to serology test are not vital flaw or ommission to nullify the direct evidence of P.W.1, P.W.2 and P.W.3.

13. The facts of the case is very straight and simple. The victim lady Thilagarani, about 10 years ago, was tried for the offence causing death of her husband Thangaraj by smashing his head, throwing stone during his sleep. In the said case, the deceased Thilagarani was tried, but acquitted. The said Thangaraj during his life time, had advanced money to one Ayyappan Chettiar and Gopal Konar for purchase to their land. Due to his sudden death and his wife Thilagarani being accused of his murder, there was no progress in the transfer of the property from the vendors. The accused herein was pressurising Thilagarani to arrange and give consent for transferring the said property in his name, which the deceased refused. Therefore, there was enmity prevailing between the deceased and her son/the accused. This was the motive for the brutal attack on the deceased by the accused on the fateful day.

14. P.W.1-Lakshmi, who is the witness to the crime and also the mother of the deceased has vividly deposed how the accused caused and attacked the deceased. Her evidence infact singularly enough to hold the accused guilty of the charge. This part of her testimony is natural, true and wholly reliable. She had not spoken about the previous enmity and motive, in fact, she has feigned ignorance about this in her chief-examination. Therefore, she was treated hostile by the prosecution. In the cross-examination by the prosecutor done with the permission of the Court, this witness again turned turtile and has spoken about the property dispute and enmity, which she has also reiterated during the cross-examination on behalf of the accused.

15. P.W.2 Chinnaiah and P.W.3 Srinivasan are the other eye witnesses who have corroborated P.W.1 regarding the overt act of the accused causing injuries and beheading the victim.

16. In connection with the advance of money paid by Thangaraj with Ayyappan Chettiar and Gopal Konar, the prosecution has not collected any further material. Therefore, the conclusion of the trial Court that the murder was due to strong motive connected with the property, lacks corroborative evidence to term the murder as rarest of rare case adding to aggravating circumstances. In fact, P.W.3 Sreenivasan who is the son of Gopal Konar, in the cross-examination, when asked whether he know about the transaction between his father Goapal Konar and Thangaraj regarding the land, he has feigned ignorance, thus the evidence for the motive for the crime is weak and left uncorroborated. However, as far as the act of committing murder by causing several cut injuries with aruval and beheading the victim Thilagarani the deposition of eye witness P.W.1, P.W.2, P.W.3 are cogent without any contradictions. It fully inspires the confidence of the Court.

17. One unique feature in this case, which is relevant both for conviction and sentence, is the conduct of the accused soon after commission of crime. He has not fleed from the scene of crime to hide himself. He has gone to Village Administrative Officer along with the severed head of his mother and voluntarily given a confession statement to him. Thereafter, he has accompanied with the Village Administrative Officer (P.W.5) to the police station. At the police Station, again, he has given a confession statement to the Investigating Officer. Therefore, there is an unassailed direct evidence for the accused causing death of Thilagarani by attacking her with aruval and hacking her head. The extra judicial confession to P.W.5 add corroboration and strength to the case of the prosecution unproving the charge against the accused. The act of the assailant to severe the head of the victim and take it along with him, is sufficient enough to hold that the injury caused by him was with an intention to cause death and saquarely falls within the definition of Clause (1) of Section 300 Cr.P.C. A culpable homicide amounting to murder.

18. As far as the charge under Section 302 IPC, in the light of the overwhelming evidence against the accused, this Court finds no other reasonable view than the trial Court recorded. However, the sentence part imposing death is not in tune with the settled principle of law qua the facts of the case.

19. The trial Court while exercising the discretionary power of sentencing, by citing several judgments of the Hon’ble Supreme Court and extracting the relevant portions, has held that considering the gravity of crime committed by the accused, motive for the crime, nature of the offence committed and all other attendant circumstances, conclude that the accused having murdered his mother brutally and caused 11 injuries, which are grotesque, diabolical and dastardly the case falls under the rarest of rare category and the accused deserves for death penalty. The learned trial Judge has also drawn a balance sheet of the aggravating and Mitigating circumstances.

20. In this context, we wish to record that alternate sentence of death for the offence under Section 302 IPC has to be imposed only in the rarest of rare case and the balance sheet drawn should be fair and enumerate all relevant facts brought out through the witnesses during trial and also the prior and subsequent antecedents, particularly, the propensity of the person found guilty of particular crime to repeat the said crime in future and the probability of the accused getting reformed and rehabilitated. In this case, it is sad to note, while imposing capital punishment of death, the trial Court knowingly or unknowingly had totally ignored all the mitigating factors. For future aid and reference for the Sessions Judges who will be trying cases of this nature, some of the mitigating circumstances, indicated by the Hon’ble Supreme Court in Bachan Singh Vs. State of Punjab reported in 1980 (2) SCC 684 is extracted below:-

“206. Mitigating circumstances- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:-

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated.
The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5)That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6)That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.”

21. Section 354 (3) of the Code of Criminal Procedure has been consciously drafted vesting the Courts with the discretion while imposing sentence. Particularly, while imposing death sentence discretion must be exercised judicially after balancing the aggravating and mitigating circumstances of the crime. Preciously, for the said reason, Section 366 of Cr.P.C., has been incorporated to test the exercise of the judicial discretion by the trial Court whether erroneous, perverse or lopsided. The valuable safeguard of the law, life and liberty of the subject, in case of capital sentence, has to be scrutinized with atmost caution and care by the superior Court.

22. Bearing this mandate in mind, when the evidence in this instant case is re-appraised, re-assessed and re-considered, we come to an irrestible conclusion that there was an improper consideration in balancing aggravating and mitigating circumstances by the trial Court.

23. We are forced to record the above said observation, because the trial Court has recorded the opinion about the propensity of committing the similar offence again and the improbability of the accused being reformed without any material. The trial Court has erred in its conclusion that the accused completely lacks the psyche or mindset which can be amenable for any reformation.

24. The said observation of the trial Court under the head of aggravating circumstances is baseless and perverse; and contrary to the conduct of the accused after the commission of crime.

25. We are of the view that the finding of the trial Court that “the manner of commission of offence shows that accused was having an undaunted audacity”, is absolutely contrary to the proven conduct of the accused, who had gone to Village Administrative Officer immediately and voluntarily given confession statement. The evidence indicates he surrendered to police, remorsefully. Therefore, while convicting the accused for committing culpable homicide amounting to murder, death penalty being excessive and not proportionate to the gravity of the crime, in view of his age, social background and his commitment to his family, the said sentence is set aside and modified to Life Imprisonment with fine of Rs.10,000/- in default three months Simple Imprisonment.

26. In the result, the judgment of the trial Court is interfered and modified as below:-

Offence Conviction and sentence
by the trial Court Conviction and sentence
by this Court
302 of I.P.C. Sentenced to death and be hanged by neck till his death. Modified.
Convicted and sentenced under Section 302 of I.P.C. Sentenced to undergo Life Imprisonment and pay a fine of Rs.10,000/-, in default, to undergo simple imprisonment for 3 months.

27. The period of sentence already undergone shall stand set off under Section 428 of Cr.P.C. In respect of disposal of the material objects, the trial Court order stands confirmed.

28. With the above modification, Crl.A.(MD)No.475 of 2021 is partly allowed and the reference in R.T.(MD) No.5 of 2021 is answered accordingly.

[S.V.N., J.] [G.J., J.] 10.12.2021
Index : Yes / No
Internet : Yes / No

am

To

1.The Sessions Judge, (Mahila Court),
Pudukkottai.

2.The Inspector of Police,
Malaiyur Police Station,
Pudukkottai District.

S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.

am

Pre-Delivery JUDGMENT MADE IN

R.T.(MD)No.5 of 2021
and
CRL.A.(MD)No.475 of 2021