Madras High Court
Mohd. Fazluddin vs State on 8 December, 2006
Author: A.C. Arumuga Perumal Adityan
Bench: A.C. Arumuga Perumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.12.2006 C O R A M The Honourable Mr. Justice R. Balasubramanian and The Honourable Mr. Justice A.C. Arumuga Perumal Adityan Criminal Appeal No.194 of 2005 Mohd. Fazluddin .. Appellant Versus State, represented by Inspector of Police, V-5 Thirumangalam Police Station, Law and Order, Chennai-600 101 (Crime No.1693 of 2002). .. Respondent - - - - - Prayer : Appeal against the judgment of the Principal Sessions Judge, Chennai dated 13.1.2005 rendered in Sessions Case No.587 of 2003. - - - - - For Appellant : Mr. I. Subramaniam, Senior Counsel for Mr. N. Vaidyanathan For Respondent : Mr. N.R. Elango, Addl. Public Prosecutor. - - - - - J U D G M E N T
Delivered by R. Balasubramanian, J.
The appellant in this appeal stands convicted in Sessions Case No.587 of 2003 on the file of the Principal Court of Sessions, Chennai under Section 302 of the Indian Penal Code, for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.100/-, carrying a default sentence. Hence he is before this Court in this appeal. Heard Mr. I. Subramaniam, learned senior counsel appearing for the appellant and Mr. N.R. Elango, learned Additional Public Prosecutor for the State. The case of the prosecution is that between 7 and 9 pm on 18.9.2002, the accused killed his co-worker, namely Sajitha Parveen (a lady) since she refused to respond to the love and affection, which the accused extended to her, by flatly rejecting the proposal for marriage. To prove their case, the prosecution examined P.Ws.1 to 7, besides marking Exs.P.1 to P.16 and M.Os.1 to 15. On the side of the defence, two witnesses were examined as D.Ws.1 and 2 and two exhibits as Exs.D.1 and D.2 came to be marked.
2. P.W.3 is a partner of a Departmental Store called "Chennai Foods" situated in II Avenue, XII Main Road, Anna Nagar, Chennai. In all, 25 people consisting of men and women were working in the Store. The accused was employed in that store as Store Keeper. Sajitha Parveen deceased in this case was also working in that Store. The sales counter of the Store is in the ground floor of the building and in the first floor, the Store Room of the Departmental Store is located. There is only one way to go to the first floor. On reaching the first floor, the first room is occupied by the Managing Director; in the adjoining second room, there is a Computer and the third room is the Store Room. The computer room and the Managing Director's room are air-conditioned. On 18.9.2002, sales was going on in the Store. Normally, upto 9 pm, there would be customers. On the occurrence day, the accused and the deceased were on duty. On the occurrence day at about 9 pm, P.W.3 was in the ground floor. P.Ws.1 and 2 are also employed in the Departmental Store. Both P.Ws.1 and 2 came down and P.W.1 informed P.W.3 that the Store Room is found locked. P.W.3 went upstairs, took the alternate key from the Managing Director's room and gave it to P.W.1. Then P.W.3 came down. On opening the Store Room, both P.Ws.1 and 2 came running to the ground floor stating that both the accused and the deceased were lying inside the Store Room with bleeding injuries. P.W.3 accompanied P.Ws.1 and 2 to the first floor, where on opening the door of the Store Room, he found Sajitha Parveen lying on the floor and the accused was also by her side. There was a blood stained knife nearby. Both the accused and Sajitha Parveen had bleeding injuries. He found Sajitha Parveen already dead. M.O.1 is the knife. P.W.3 informed the investigating police station. P.Ws.1 and 2 are co-workers with the accused and the deceased in the Departmental Store run by P.W.3. The evidence of P.W.1 shows that the Store Room is used for keeping all articles meant for sale in the Departmental Store. On the occurrence day, P.W.1, the accused and the deceased were all working in the Store. At about 9 pm, a customer came to the shop and wanted some edible oil. Therefore, to get the oil from the Store Room, P.Ws.1 and 2 went up to the store room, where they found that the lights in the verandah leading to the store room were switched off. They found the door of the store room locked. There is a knob inside the door of the store room and if the knob is rotated from inside, the door would open. However, to open the locked door from outside, key is necessary. From the Managing Director's room, P.W.2 collected the key to the Store Room and with that key, P.W.1 opened the door of the Store Room. At that time, P.W.2 was standing by his side. P.W.1 switched on the light in the verandah and then when he opened the door of the store room, he found blood on the floor. A little away, he saw the accused sitting in a slanting position and he had a bleeding injury on his neck. M.O.1 was lying by the side of the accused. Sajitha Parveen was also lying on the floor, close to the accused. On her were two gunny bags. He noticed blood on the person of Sajitha Parveen. Sajitha Parven was speechless. Immediately, P.Ws.1 and 2 informed P.W.3, who came up and observed the entire scene. Then P.W.3 came down and telephoned his father and thereafter to the police. The police arrived at the scene. At the spot itself, P.W.1 gave the complaint, which is Ex.P.1. On the occurrence day at about 3 pm, P.W.1 went to the store room, where he found the accused sitting in an agitated mood. When questioned, the accused was evasive. At that time, Sajitha Parveen told him that the accused is sitting there as an annoyed person. P.W.1 knew that between the accused and the deceased, there used to be often quarrel. After removing some article at that time from the Store Room, P.W.1 went down. At 7 pm on that night, P.W.1 again went to the Store Room and at that time, the accused persuaded P.W.1 to go down since there is no more work in the Store Room. The evidence of P.W.2 is more or less on the same lines as spoken to by P.W.1.
3. P.W.6 is the Inspector of Police during the relevant time in the investigating police station. At 9.45 pm on the occurrence day, he received information over telephone, which made him go to the Departmental Store. There, he found Sajitha Parveen lying dead in a pool of blood. Close to her, the accused was also sitting with bleeding injuries. The accused had bleeding injuries on both his hands. As there was excess bleeding, P.W.6 sent the accused to a private hospital at Anna Nagar for treatment. By examining P.W.1, he recorded his statement, which he registered in his police station as Ex.P.1 in Crime No.1693 of 2002 under Section 302, I.P.C. Ex.P.6 is the Printed F.I.R. prepared by him. P.W.6 sent the express records to the Court as well as higher officials. P.W.6 again went to the crime scene, where in the presence of P.W.7 and another, he prepared Ex.P.7, the observation mahazar and Ex.P.8, the rough sketch. From the crime scene, he recovered M.O.1 - knife, M.O.2 - a pair of slippers, M.O.3 a pair of lady's slippers, M.O.4 the cover for a kitchen knife and M.O.5 - an address book, all under a mahazar attested by the same witnesses. Then, P.W.6 removed the blood available in the door handle and other places of the store room by using cotton. All the above articles were recovered under Ex.P.9. Then, he sent the incriminating objects recovered from the crime scene to the Court with a requisition to subject the same for chemical examination. Thereafter, P.W.6 sent the dead body to the Kilpauk Medical College Hospital with a requisition to conduct postmortem. Before sending the body for postmortem, he conducted inquest over the dead body between 0030 hours and 0340 hours on 19.9.2002, i.e., on the intervening night of 18.9.2002 and 19.9.2002 and prepared Ex.P.10, the inquest report. During inquest, he examined P.Ws.1, 2 and others by recording their statements. P.W.4, on receipt of Ex.P.2, the requisition and the dead body, commenced postmortem on the dead body at 1.30 am on 19.9.2002. During postmortem, he found various symtoms as noted by him in Ex.P.3, the Postmortem Report. Ex.P.4 is the Toxicology Report. The symptoms noted by P.W.4 are as hereunder:
"INJURIES : (1) A cut wound over front of right elbow 2.5 x 2 x 1cm (2) Another cut wound 1 cm below the injury No.1, 2 x 1 x 2cms (3) Fifteen stab wounds over right and left and middle of abdomen 5cmx1cm(L)x2-1cm(B)xskin deep part of small intestine is protruding through right side one stab wound.
O/D Three stab wounds entered into the abdominal cavity runs forward and pierced the right lobe of loin anterior surface stomach and middle of left kidney, peritonal cavity contains 2/10cc fluid blood and 300 gms of clotted wound (4) There are 4 stab wounds 5-3cmx2-1cmxskin deep over left loin (5) Four elliptical stab wounds 5-1cmx1cmxskin deep over interscapular and left scapular region all the wound marings are regular and clear cut all the stab wound end shows one end is acute and other end is obtuse all the above injuries are antemortem in nature.
Heart : Intact contents fluid blood in all chambers valves; normal coronaries; patent Great vessels normal, Lungs normal C/S Pale. Hyoid bone Intact. Stomach contents 150 gms of food substances. Liver, Spleen, Kidneys normal C/S Pale. Intestines Distended with gas. Bladder : Empty, Uterus : Normal, Ovaries : Normal. Scalp bones, Membrane Intact. Spinal column Intact."
The doctor opined that death is due to shock and heamorrhage due to multiple stab wounds. According to the doctor, Injury No.3 noted by him contains 15 stab injuries and there is no chance of survival after receipt of those injuries. According to him, death would have occurred 18 to 20 hours prior to autopsy. Ex.P.4 shows that no poison was detected in the viscera of the deceased.
4. P.W.7 witnessed the preparation of Ex.P.7, the observation mahazar, the recovery of M.O.1 and the other incriminating articles already referred to, from the crime scene. P.W.6 continued his investigation by examining further witnesses and recording their statements. He recovered M.Os.6 to 9 removed from the dead body after postmortem, handed over to him by the Constable present during postmortem. On 20.9.2002, he came to know that the accused, who was an in-patient at the hospital, was conscious. Accordingly, he brought the XII Metropolitan Magistrate to the hospital and took the accused into police custody after examining the doctors present there and recording their statements. In police custody, the accused was examined in the presence of P.W.5 and another. At that time, the accused gave a voluntary confession statement, the admissible portion of which is Ex.P.5. M.Os.10 to 15 found on the person of the accused were recovered after giving him a change dress. All the case properties were sent to the Court with a requisition, Ex.P.11, to subject the same for chemical examination. P.W.5 was a Senior Officer in the Sundaram Medical Foundation during the relevant time. The accused was brought to their hospital on 18.9.2002 by the police. He witnessed the examination of the accused, as spoken to by P.W.6 and recording his confession statement, leading to the recovery. The accused was discharged from the hospital on 20.9.2002. The accused was unconscious on the day when he was brought to the hospital. As an enclosure to Court's letter Ex.P.12, the case properties were sent to the laboratory. Ex.P.13 is the Biology Report. Ex.P.14 is the report of the blood group of the deceased. Ex.P.15 is the Serologist's Report. After completing the investigation, P.W.6 filed the final report in the Court against the accused for the offence referred to earlier. When the accused was questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to facts. As stated earlier, two witnesses were examined on his side as D.Ws.1 and 2, besides two exhibits being marked as Exs.D.1 and D.2. D.W.1 during the relevant time was working as a Senior House Officer in Sundaram Medical Foundation, Anna Nagar, Chennai. He would state that the accused was admitted in their hospital on 18.9.2002. On examination, he was found to be unresponsive, unconscious and was having no spontanoues respiration. He also found that the accused had suffered multiple lacerations on both the palms, both wrists and multiple abrasions were present on the right side of his neck. According to him, a weapon like M.O.1 would have caused the injuries found on the accused. His evidence shows that the accused was an in-patient in that hospital till 3.05 pm on 20.9.2002 and that the accused was brought to their hospital on 18.9.2002 by his co-workers. D.W.2 is the Medical Officer in the Government Stanley Hospital, Chennai. He would state that at 2.17 am on 21.9.2002, i.e., on the intervening night of 20.9.2002 and 21.9.2002, the accused was admitted in the hospital, brought by the police. D.W.2 has the Accident Register as well as the medical memo issued by the police. The accused told him that the injuries found on his person are self-inflicted. His evidence shows that plastic surgery was performed on the accused. Ex.D.1 is the Subpoena issued to P.W.7 to appear in Court to give evidence. Ex.D.2 is the Intensive Care Unit Discharge Summary issued by Sundaram Medical Foundation for the treatment given to the accused.
5. Mr. I. Subramaniam, learned senior counsel appearing for the appellant would contend that from the probabilities that could be inferred from the evidence of P.Ws.1 to 3 available in this case, this Court could easily visualise would show that both the accused and the deceased could have been attacked by an unknown assailant, who in all probability, would have come to the Departmental Store to steal cash. According to the learned senior counsel, it is possible to conclude from the evidence of P.Ws.1 to 3 that when the accused in the company of the deceased attempted to prevent the thief entering the cash room, both would have been attacked and pushed inside the store room. According to the learned senior counsel, after so attacking, the unknown assailant might have made good his escape by closing the door from outside, while leaving. Admittedly, the prosecution evidence do not show any motive for the accused to commit the crime. Therefore, learned senior counsel reiterated his submission that this is a clear case where both the accused and the victim, Sajitha Parveen had come to be attacked by an unknown assailant and unfortunately, Sajitha Parveen succumbed to the injuries. To hold the accused guilty for the offence of murder, there must be strong evidence and from the evidence of P.Ws.1, 2 and 3, it is not possible to conclude so, since they are admittedly not eye witnesses to the crime. Their only evidence against the accused is that he was found injured in the very same room in which Sajitha Parveen was found dead with the door of the room closed. Alternatively and without prejudice to the above submissions, learned senior counsel would contend, by taking us through Ex.P.5, the confession statement stated to have been given by the accused to the police on his arrest, that the materials available in the confession statement would show that Exception-1 to Section 300 of the Indian Penal Code would stand squarely attracted. Having regard to the age of the accused on the date of the occurrence, which should be around 22 or so, this Court can consider granting him a lenient sentence while altering the conviction. It is also brought to our notice by the learned senior counsel that there is a serious discrepancy as to who took the accused to the hospital. In opposing these arguments, the learned Additional Public Prosecutor would contend that this is a clear case of murder committed by the accused by killing Sajitha Parveen. A duty is cast upon the accused to explain as to how he came to sustain the injuries, when he was found in the very same room where the deceased was found lying dead. However, when the accused was questioned under Sectioned 313 of the Code of Criminal Procedure, he denied each and every circumstance put up against him as false and contrary to facts. He has not come out with any explanation at all. According to the learned Additional Public Prosecutor, on the facts available in this case, Exception-1 to Section 300, I.P.C. would not be attracted. Mr. I. Subramaniam, learned senior counsel replied by stating that the accused is shown to have filed a written statement before the Court of Sessions at the end of his questioning and the case bundle handed over to him by the counsel on record contains a copy of the said written statement, but unfortunately, it is not available in the records. But nonetheless, it is contended by Mr. I. Subramaniam, learned senior counsel that in Ex.P.5, the accused had explained as to how he came to sustain the injuries. According to the learned senior counsel, when there is no legal bar to use that statement in favour of the accused and if it contains favourable materials therein, then this Court can definitely take those materials into account while considering the appellant's case. Learned senior counsel brought to our notice the following judgments, not only in support of the plea that the confession statement of the accused can be used in his favour, but also to sustain his point that Exception-1 to Section 300, I.P.C. is attracted to the case on hand. The following are the case laws :
1972 Law Weekly (Criminal) 34 [Vadivel Padayachi In re.] 1974 Criminal Law Journal 381 [In re. Ganesan] 1996 (2) Madras Weekly Notes (Criminal) 322 [Koolu alias Kottaiya Pilla vs. State] 1997 (1) Madras Weekly Notes (Criminal) 320 [Sathiyanathan vs. State]
6. Having regard to the submissions made by the learned senior counsel for the appellant and the submissions made by the learned Additional Public Prosecutor, we went through the entire evidence on record. Admittedly, there are no eye witnesses to the crime. It is also not in dispute that the accused was found with bleeding injuries in the same very room where the dead body of Sajitha Parveen was found. Ex.P.8 is the rough sketch of the crime scene. There is a Departmental Store called "Chennai Foods" in the II Avenue, XII Main Road, Anna Nagar. The Second Avenue runs east-west. South of that road is a building. The sketch shows that in the ground floor, the sales area of "Chennai Foods" is located. Behind the Departmental Store, in the ground floor itself, there is a space where various items are stored. The building in the occupation of P.W.3 for running the Departmental Store consists of a ground floor and a first floor. We could see from the plan, as one enters the Departmental Store, there is a way to go up to the first floor on the west. On reaching the first floor, we find a room where the Managing Director is accommodated; in the next adjoining room, there is a computer as well as the cash chest and the last room is the Store Room. The Managing Director's room and the computer room have entrance from the northern wall and the eastern wall respectively, while the store room has its entrance from the southern wall. P.W.3 primarily and P.Ws.1 and 2 had explained the topography of the building. When we read the evidence of these witnesses in the context of the details available in the plan, it is clear to our mind that there is only one way to go to the first floor of the premises, where in the ground floor, "Chennai Foods" is located. We also find that there is a separate way to go to Tata Consultancy Services, who appear to be having their office on the west of the first floor of the building in the occupation of P.W.3.
7. Now let us examine the evidence available in this case. P.W.1 would depose that the accused, the deceased, P.W.1 and P.W.2 were all working in the Departmental Store. As we noted earlier, there are no eye witnesses to the crime and therefore, we would only refer to the relevant material available in their evidence to decide this case. According to P.W.1, on the occurrence day, he went to the store room in the first floor at about 3 pm and at that time, he noticed the accused sitting there in an agitated mood and when P.W.1 asked him as to the cause for it, the accused did not reply. The deceased sarcastically commented that the accused is sitting like a monkey having taken some ginger. P.W.1 would state that there used to be quarrel often between the accused and the deceased on trivial issues. After removing some items from the store room, P.W.1 came down. At 7 pm on that night, P.W.2 went up to the store room to get some more things. P.W.2 would state that at about 7 pm, he went up to the store room to get some edible oil tin. When he neared the store room at the first floor, he found the accused sitting in front of the entry to the store room. P.W.2 told him that he had come there to take some edible oil tin, for which the accused replied that all the necessary materials had already been taken to the Departmental Store itself and therefore, P.W.2 can go down and mind his work. Then, we have the evidence of P.W.1 and P.W.2, who would say that a need arose at 9 pm on that night once again to go to the store room and when both of them went up, they found the verandah leading to the store room in darkness. Then they reached the store room, but they found the door of the room closed. P.W.1 had stated that the door, on being closed, would automatically lock itself from inside and once the door is closed like that, a key alone has to be used to open the door from outside. Accordingly, P.Ws.1 and 2 come down, told P.W.3 about the door of the store room being closed and then, on P.W.3 giving them the key, they went up; switched on the light in the verandah and then opened the store room. At that time, they find blood on the floor of the store room and also noticed Sajitha Parveen lying in a pool of blood and the accused also lying close to her with bleeding injuries. This made P.Ws.1 and 2 to come down in anguish and shock and informed P.W.3 as to what they saw and then, law was set in motion by P.W.3 telephoning the police. There is no dispute that thereafter, the police arrived at the scene and by examining P.W.1, recorded his statement. There is also evidence to show that in the computer room, which adjoins the store room, there were two workers, among whom one is a female.
8. In the light of the evidence referred to above, let us now analyse whether the prosecution had established its case beyond reasonable doubt or whether the defence raised before this Court is more probable. The argument advanced before this Court based on the written statement stated to have been filed by the accused at the end of his questioning before the lower court is that some unknown assailant entered the first floor of the Departmental Store to steal cash from the cash chest and on seeing him, Sajitha Parveen raised her voice and started shouting; the unknown assailant entered the store room and indiscriminately attacked Sajitha Parveen; the accused attempted to save Sajitha Parveen and the assailant did not spare him also; and then, after completing the act on the two, the assailant made good his escape. If this defence is to be accepted, then the accused and the deceased came to be attacked inside the store room itself. The evidence of P.Ws.1, 2 and 3 show that in the floor of the store room, there was blood. Ex.P.7 is the observation mahazar. It also shows that on the entire floor of the store room, there was blood. Therefore, if the occurrence had come to take place in the manner suggested by the defence as referred to above, then when the unknown assailant, after committing the crime, escapes from the store room, it must necessarily follow that he would leave his blood stained footprints on his route which he used to escape. In this case, there is absolutely no evidence to show that in any portion of the first floor except the store room, there were any signs of blood. In fact, one of the witnesses before the Court had clearly stated that he did not see any such blood stained footprints in the verandah leading to the store room. The absence of blood stained footprints in any portion of the first floor outside the store room definitely gives a direct lie to the defence raised, namely than an unknown assailant entered the building to steal money and when he was confronted by the accused and the deceased, he attacked both of them and made good his escape. We can test the defence from another angle also. According to the defence, the unknown assailant came to steal cash. There is evidence to show that the cash chest is in the computer room. There is also evidence that in the same room where cash chest is available, there is also a computer and in that room, at the occurrence time, two workers, out of whom one is a lady, were there. Therefore, it is logical to conclude that if a man comes to steal cash, he would only go to the room where the cash chest is available. If he so enters that room, his first target would be those persons who were available in that room. In this case, there is no evidence to show that the workers in the cash room were attacked. Under these circumstances, we have no hesitation at all in agreeing with the submission made by the learned Additional Public Prosecutor that the defence theory of an unknown assailant entering the building to steal cash and in that process, attacking two persons and escaping is highly improbable. If such a defence theory is excluded, then we have no doubt at all that the accused found with bleeding injuries inside the closed store room where the dead body of Sajitha Parveen was found, has a duty to explain as to how he came to sustain the injuries and as to how Sajitha Parveen died, because it would be only within his exclusive knowledge as to what happened inside the room. Before proceeding to the next stage of this case, we would like to point out that the argument advanced by the learned senior counsel as to who took the accused to the Sundaram Medical Foundation and as to why none from that hospital had been examined by the State is of no significance at all, since the overwhelming evidence available in this case as referred to above unerringly lead us to the position, namely that it is the accused and the accused alone who would have exclusive knowledge as to how he came to sustain the injuries and as to how Sajitha Parveen came to die. We have already rejected the defence theory of an unknown assailant entering the building and murdering Sajitha Parveen and causing grievous hurt to the accused. Having a overall view of the materials noted above, we have no doubt at all that the accused alone fatally attacked the victim in this case.
9. We now address ourselves to the question as to whether the confession statement of the accused given to the police, namely Ex.P.5 could be used in favour of the accused if there are any materials therein, in his favour. Learned Additional Public Prosecutor is not disputing this point. Anyhow, by way of abundant caution, we want to refer to the case laws on this point. In A.I.R. 1952 Madras 586 [In re. Mottai Thevar], a Division Bench of this Court held that though the statement of the accused given to the police officer during investigation cannot be used against him, yet there is no bar of it being used in his favour. This judgment had been followed later on by another Division Bench of this Court in the judgment reported in 1974 Criminal Law Journal 381 [In re. Ganesan], where the learned Judges held that there is no bar to the appellant (the accused in that case) using the statement in his favour. There are other judgments also to the same effect. But however, we are not adding to the list of authorities in this judgment. Mr. I. Subramaniam, learned senior counsel would contend that if the contents of Ex.P.5 are taken into account, it is clear that the accused had acted due to a sudden provocation, having lost his self-control. Since much reliance is placed on the contents of Ex.P.5, it is better we translate the relevant portions of the contents of Ex.P.5 (the contents are in Tamil) into English as hereunder:
"I am working in a supermarket called 'Chennai Foods'; Sajitha Parveen (the deceased), a Muslim girl, is also working with me in the Store; I have overwhelming love for her; therefore, from the day when we started working together, while talking to her, I used to buy tender coconut for her, which she used to accept; two months prior to the occurrence, I purchased a pair of gold ear studs at a cost of Rs.1,000/- from a jewellery mart and gave it to Sajitha Parveen as her birthday present, which she accepted; she had told about my gift to her lady friends also; my love to her was increasing day by day and I came to a situation where without seeing her, I could not live; however, Sajitha Parveen never told me that she is also in love with me; on a day one month prior to the occurrence, I told Sajitha Parveen that I love her; however, she did not accept it; she brought my proposal to the notice of a co-worker by name Rajeswari and in turn, Rajeswari asked me about it; I told Rajeswari that it is true that I expressed my love to Sajitha Parveen and since Sajitha Parveen said that she is not for it, I have also put an end to that; when Sajitha Parveen goes home after work, I have seen her talking to another person in public places; I did not like that; on 18.9.2002 (the occurrence day), I reported first for duty; then only Sajitha Parveen reported for duty; we were working together in the store room; I had decided that at least on that day, I must get her consent for my proposal; I also planned that if she is not for me, she should be finished off so that she would not be available for anybody else; at about 1 pm or so, Rajeswari called Sajitha Parveen for lunch and they left; I have communicated to Sajitha Parveen through Rajeswari that I am in love with her and even thereafter, Sajitha Parveen was not responding; if Sajitha Parveen is not going to accept my proposal, I had decided not to allow her to live by killing her; therefore, when Sajitha Parveen and Rajeswari went for lunch, by about 2 pm, I went to the Departmental Store and from the sales area, I took a new knife without being noticed by anybody and kept it concealed in the store room; I had made up my mind that I must get an answer from Sajitha Parveen and without getting that answer, I should not leave her and with that in my mind, I was sitting in the store room in anger; by about 3 pm, P.W.1 came up to the store room and at that time, Sajeetha Parveen sarcastically commented to P.W.1 that I am sitting like a monkey; P.W.1 went down; by about 7 pm, P.W.2 came up to the store room and I sent him down; to achieve my plan and to avoid others hearing any noise, pretending to switch off the music system, I played a new C.D. in the music system and increased the volume; at 7.15 pm, Sajeetha Parveen came to the store room in her purdah; I followed her and told her that I am unable to forget her and that I love her heart to heart and I wanted to know what she is saying; Sajitha Parveen refused stating that she is already engaged and told me to forget her; I told her that if that is going to be her attitude, I would die; she found fault with me and asked me whether I am mad and as to why I am talking like that; then as per the original plan, I took the knife kept in the store room and stating that if she is not going to love me, I will cut myself and stating so, I cut my left hand wrist; I was bleeding; on seeing that, Sajitha Parveen tried to grab the knife from my hand, and holding the handle portion of the knife, pulled it from my hand; holding the blade portion of the knife with my palms, I pulled the knife towards me forcibly; in that process, I received injuries in the fingers of both my hands, resulting in excessive bleeding; I was moving my hands here and there and therefore, there was blood all over the area; on seeing that, Sajitha Parveen shouted; while bleeding and in anger and thinking that if she is not going to be mine, she should not live with anybody else, I stabbed Sajitha Parveen indiscriminately in my anger; Sajitha Parveen fell down unconscious; I switched off the light inside the store room; then, as is seen on celluloid screen, I thought I must also die and therefore, I started cutting my right hand wrist; I started cutting my neck; however, I could not succeed; therefore, dropping the knife down, I moved to the place where Sajitha Parveen's legs were there and sat there in a slanting position."
10. From the above contents in Ex.P.5, it is strenuously contended by the learned senior counsel that the accused had been definitely provoked by the attitude of Sajitha Parveen, as a result of which he lost his self-control, leading to the commission of the crime. In this context, learned senior counsel brought to our notice the judgment of the Supreme Court reported in A.I.R. 1962 S.C. 605 [Nanavati vs. State of Maharashtra], where the Supreme Court summarised the Indian law on the subject of sudden provocation as hereunder :-
"The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused place in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures ,au alo, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to Section 300 of the I.P.C. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."
This judgment had been followed by this Court in the judgment reported in 1974 Criminal Law Journal 381 [In re. Ganesan]. In 1972 Law Weekly (Criminal) 34 [Vadivel Padayachi In re.], once again brought to our notice by the learned senior counsel, this Court held as hereunder :-
"A hyper-sensitive person, who loses his power of self control at the slightest provocation, would not be entitled to the benefit of this Exception. Deprivation of the power of self-control must be the result of a provocation, which is both sudden and grave. Provocation is an external stimulus, which can be objectively guaged. But loss of self-control is a subjective phenomenon, which is difficult to define. To peep into the mind of the accused as it was at the relevant time is seldom possible. The state of his mind can only be inferred from the surrounding circumstances, from the manner in which he reacted to the circumstances, and most important of all, from his own description of the state of his mind. His description of his subjective condition may be true or false, but the truth or falsity of his description is fortunately susceptible of verification with reference to relevant objective facts. Before embarking upon the process of such verification, the court must imaginatively reconstruct the psychological situation in which the accused found himself whilst he committed the crime in question and judge his behaviour unhampered by any inflexible rule of thumb."
Mr. N.R. Elango, learned Additional Public Prosecutor would oppose this argument of the learned senior counsel by stating that it is not as though the deceased, for the first time, had rejected the proposal of love made by the accused only on the day of occurrence. But on the other hand, it has come out on record that even on a couple of occasions earlier, Sajitha Parveen had made it clear that she is not for the accused. Therefore, relying upon the very same judgment of the Supreme Court reported in Nanavati's case (cited supra), it is argued that the accused, belonging to the class of persons, as he is, ought not to have conducted himself in such a manner to perpetrate the crime. If that is established, then there is no scope of extending the benefit of Exception-1 to Section 300, I.P.C. to the accused.
11. Having regard to the case laws submitted by the learned senior counsel and the contents of Ex.P.5, we reflect our mind as hereunder :
We have already summarised the contents of Ex.P.5, which is extensive in nature, as to what was running through the mind of the accused at the time when he committed the crime. The Division Bench of this Court, in the judgment reported in Vadivel Padayachi's case (cited supra) held that, "To peep into the mind of the accused as it was at the relevant point is seldom possible and the state of his mind can only be inferred from the surrounding circumstances, from the manner in which he reacted to the circumstances and most important of all, from his own description of the state of his mind". In the very same judgment, the Division Bench also held that, "Before embarking upon the process of such verification, the Court must imaginatively reconstruct the psychological situation in which the accused found himself whilst he committed the crime and judge his behaviour unhampered by any inflexible rule of thumb". In Nanavati's case (cited supra), the Supreme Court held that the test of grave and sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation, in which the accused was placed, would be so provoked as to lose his self-control. Therefore, the sum and substance of the principle laid down by the Courts is that the Court, while considering the case of an accused who claims to have acted on sudden provocation, should place itself in the place of the accused and analyse the case. In this case, both the accused and the deceased belong to the same community, namely Muslims. Both are young, namely the accused might have been aged around 22 or so and the deceased was aged around 21 or so. The relationship between the accused and the deceased appears to have started as an ordinary friendship. The confession statement of the accused shows that the accused, in the course of his friendship, started moving very closely with the deceased; he had even presented a pair of gold ear studs to the deceased as her birthday gift and the deceased had gladly accepted it and not only that, the deceased had also brought that presentation to the notice of her friends. These acts on the part of the victim in accepting the gift of the nature referred to above, in our considered opinion, would have definitely evoked a keen interest in the mind of the accused that he is proceeding on the right track and that the girl, namely the deceased, is responding to him. From the confession statement, it is seen that once or twice earlier, when the accused expressed his desire to the victim, she refused. But that does not appear to be the end of the matter, as we could see from the confession statement, and the accused was still having an eye on her, namely wanting to marry her. It appears that he had not erased her memory from his mind. Since both of them are working in the same store room, it is not possible to conclude that once the victim had rejected the proposal made by the accused, the accused should completely severe his connection with the unfortunate victim. It is not possible to read human mind and that is what the Division Bench in Vadivel Padayachi's case (cited supra) said. As we noted earlier, both are young and in all probability, due to infatuation, the accused might have been after the victim. Having regard to the age of the accused and that of the deceased, we cannot find fault with the accused continuing to have love for the unfortunate victim. He finds the victim speaking to other men in public places. Therefore, he starts worrying - as we can see from the confession statement - as to why the victim, after refusing the proposal of the accused, should talk to others. In other words, the accused might have been entertaining a doubt in his mind as to whether the victim had definitely rejected him or would she still have a soft corner for him. Only in that context, it appears that the accused had made up his mind to persuade the victim to turn a soft corner for him. The sequence of events disclosed in the confession statement, as extracted above, shows that though the accused had a mind to kill the unfortunate victim to start with, yet he did not even attempt to kill her initially. He reiterated by words his love for her and he wanted her to respond favourably. Even at that stage, Sajitha Parveen rejected the proposal of the accused. Even then, the accused did not want to kill her, but only attempted to hurt himself saying that if she is going to flatly refuse his love, he would kill himself and he in fact, started hurting himself by cutting his left hand wrist. He started bleeding. Sajitha Parveen comes to his rescue asking him if he has gone mad to act like that and in fact, attempted to pull the knife from his hand. The accused started pulling the knife from the other end, resulting in further injuries in his fingers and further bleeding. Sajitha Parveen sees blood in the room and she shouts. We have extracted earlier, the exact words used by the accused at that stage. According to him, he lost all his self-control at that time and in a fit of anger, stabbed the accused indiscriminately. Not only that, after seeing his loved one - though in a unilateral love - falling down unconscious, he decides as to why he also should not die, as is normally shown on celluloid screen. Therefore, he cuts his right hand wrist. Then he proceeds to cut his neck. He could not succeed in severing his neck and therefore, he decides to go and sit by the feet of Sajitha Parveen. From Ex.D.2, we see that the accused had suffered very severe injuries and he was put on a ventilator. Therefore, as rightly said by the Division Bench of this Court in the judgment reported in Vadivel Padayachi's case (cited supra), the act of the accused in cutting his right hand wrist and then attemting to cut his neck is an act done in remorse. Another Division Bench of this Court, in In re. Ganesan's case (cited supra), held that after committing the crime on the victim in that case, the accused felt remorse for it after his temper had cooled down. In this case, there was no time lapse between the act of the accused in fatally attacking Sajitha Parveen and his act of cutting himself, both on the right hand wrist and his neck. In other words, in one continuous transaction, the accused has expressed his remorse by proceeding to cut his right hand wrist and the neck. As we stated earlier, it is impossible to read a human mind and if it is so, then it is also not possible for us to read what would have been in the mind of the accused when he was caught in the tussle for love between him and the deceased Sajitha Parveen. As pointed out by the learned Additional Public Prosecutor, this Court, in Vadivel Padayachi's case (cited supra), has held that a hyper-sensitive person, who loses his power of self-control at the slightest provocation, would not be entitled to the benefit of Exception-1 to Section 300, I.P.C. In our considered opinion, in the case on hand, we cannot read the accused as a hyper-sensitive person. Love is a very sensitive subject and the feelings revolving around such an exposure would vary from individual to individual. It would ride the emotion of people and again, the degree of emotion would vary from person to person. The confession statement of the accused would show that the accused appears to have been over-powered by his emotion at all times on the day of occurrence, namely from the afternoon of 18.9.2002, till he actually came to commit the crime.
Under these circumstances, we have no doubt at all that Exception-1 to Section 300, I.P.C. gets squarely attracted to the case on hand.
12. In view of the above discussion, we conclude as hereunder :
The medical evidence shows that Sajitha Parveen was done to death. The medical evidence also shows that the accused had suffered injuries on his person, which resulted in he being admitted in the intensive care unit of a private corporate hospital; in the private corporate hospital, he was on a ventilator; the accused did not kill the victim immediately after she rejected his proposal, but on the other hand, he started hurting himself with an intention to die, so that at least at that stage, the deceased would turn a soft corner for him; even the victim tried to save the accused, but she failed; the accused started profusely bleeding; the victim shouts and at that stage, the accused, losing all his self-control over his person, emotions over-riding him, commits the crime, resulting in the death of Sajitha Parveen and thereafter, in no time, he makes an attempt on his life by not only cutting his right hand wrist (he had already cut his left hand wrist), but also his neck, in which attempt he failed, thereby showing remorse. Therefore, Exception-1 to Section 300 of the Indian Penal Code would get attracted to the case on hand. In the face of such conclusion, we are inclined to set aside the conviction of the accused under Section 302 of the Indian Penal Code and instead, bring his act under Section 304, Part-I of the Indian Penal Code, for which he would stand sentenced to undergo rigorous imprisonment for a period of seven years. Any period of sentence already undergone by the accused pursuant to the judgment in challenge would be set off. The fine amount imposed for his conviction under Section 302 of the Indian Penal Code is retained for his conviction under Section 304, Part-I of the Indian Penal Code. The criminal appeal is disposed of on the lines indicated above.
ab To
1. The Principal Sessions Judge, Chennai.
2. The District Collector, Chennai.
3. The Director General of Police, Chennai.
4. The Public Prosecutor, High Court, Chennai.
5. The Superintendent, Central Prison, Vellore.
6. The Inspector of Police, V-5 Thirumangalam Police Station, Law and Order, Chennai-600 101.