Madras High Court
Ahluvaliya And Others vs State By Inspector Of Police on 23 January, 1995
Equivalent citations: 1995CRILJ3511
JUDGMENT Govardhan, J.
1. This appeal is against the judgment passed by the learned IV Additional Sessions Judge, Madras dated 9-4-1992 in S.C. No. 263/91.
2. Both the appellants herein stood charged under S. 302 read with S. 34 of Indian Penal Code of having committed murder of their daughters by name Pichu and Pushi aged 5 years each and son by name Tittu aged 3 year on the night of 1-6-1990 by administering poison to them with the intention of committing their murder. The first appellant was also charged under S. 309 of Indian Penal Code of having attempted to commit suicide by inflicting knife injuries all over his body. The second appellant was also charged under S. 309 of Indian Penal Code of having attempted to commit suicide by immolating herself after pouring kerosene over her body.
3. The learned Sessions Judge found both the appellants guilty under the charges of S. 302 read with S. 34 of Indian Penal Code.(3 counts) and under S. 302 of Indian Penal Code, convicted them thereunder and sentenced them to undergo life imprisonment under S. 302 read with S. 34 of Indian Penal Code. The learned Judge found them each guilty unders S. 309, I.P.C. convicted and sentenced them to undergo simple imprisonment for a period of six months and directed them to undergo the aforesaid imprisonment to run concurrently. Hence the appeal.
4. The prosecution case may be stated as follows :- The first appellant who is residing with his family at No. 5, III Street, Wallace Garden is running a Convention Centre in the 8th Floor at Jawar Plaza, Nungampakkam High Road. The business which was a prosperous one previously has dwindled at the time of the occurrence. PW 1 Moses was employed as a Peon by the first appellant to attend in the office as well as his residence. P.W.1 Moses used to keep the Office open. On 1-6-1990 when he came to the house of the first appellant as usual at 8.10 a.m. the outer gate of the house was found closed. There was no response in spite of his knocking. Since, it was time for opening the Office. Moses scaled over the gate went inside and pressed the calling bell. The first appellant opened the front door. Moses found him bleeding all over the body. On enquiry by Moses as to what is the matter, the first appellant had advised him not to touch anything and go away and closed the door. At that time the first appellant was wearing only a towel in his waist and nothing else. Moses went to the house of Catering Manager Verma who was residing at Nandhanam in an auto rickshaw and learnt that he had already left the Office. When he returned to the house of the first appellant in the same Auto rickshaw, he found the Office Manager D. Costa viz., P.W. 2 standing near the gate. Moses conveyed the information given to him by the first appellant. On his advise, he went to the house on the opposite side and informed the Police by dialing to No. 100. P.W. 2 D. Costa who was employed under the first appellant on a salary of Rs. 1,600/- per month, has come to the house of the first appellant on 1-6-1990 at 9.30 a.m. and while he was waiting there, he found P.W. 1 coming there. On being informed by P.W. 1 that the first appellant answered the calling bell and at that time there was bleeding all over the body of the first appellant and the first appellant had advised him to go away, he advised P.W. 1 to inform the Police by phone. Both P.Ws. 1 and 2 would say that that the Police came after some time. The Police and P.W. 1 went inside, by scaling over the gate and by break opening the front door. Moses accompanied the Police inside the house, while D. Costa (P.W. 2) stood outside the gate. Moses found the three children of appellants lying dead on the cot and the second appellant lying beneath the cot fully wrapped with a bed sheet and there were bloodstains on her. Moses had found the first appellant lying down with a jatti on his body with bleeding injuries all over his body. On enquiry as to why he had done like that. Moses has informed by the first appellant, that he could not bear the strain of debts, he is unable to pay the salary and rent and that the cheques issued by him have bounced and therefore they have decided to die wholesale. According to Moses, the first appellant had further informed him that the children were administered sleeping pills mixed with milk and the second appellant had poured oil and immolated herself and that with the intention of dying, he also cut himself on his hands and legs after getting heavily drunk. According to P.W. 1 Ambalam van from Appollo Hospital came there and the appellants 1 and 2 were removed to the hospital and he had informed as to what happened, to the Police and that it has been reduced to writing in which he has signed and it is Ex. P. 1. According to P.W. 2, after the Police opened the outer gate, he went inside and found the three children dead on the cot and the first appellant lying unconscious in the adjacent room. He has also stated that the appellants were removed to the hospital by Ambulance.
5. P.W. 10 the Police Head Constable attached to the Control Room, has informed the message which he received at 9.45 a.m. on 1-6-1990 through phone, to the writer of the Thousand Lights Police Station. P.W. 13 the Inspector of Police attached to Thousand Lights Police Station on receipt of information from the Control Room at about 10.00 a.m. on 1-6-1990, visited the scene of occurrence at about 10.10 a.m. and went inside by break opening the door since it was found locked. P.W. 13 found three children lying dead on the bed in the first floor and the second appellant lying under the cot with burn injuries and the first appellant with cut injuries on his hands, neck, leg, etc. P.W. 13 has recorded the statement given by P.W. 1 under Ex. P. 1 and sent the two appellants to the hospital for treatment. After registering the case against the appellants at 11 a.m. in Crime No. 313 of 1990 P.W. 13 has prepared the express first information report under Ex. P. 27 and despatched the same to the officers. He returned to the scene of occurrence and in presence of P.W. 3 who was then working as an Accountant under the first appellant, prepared a rough sketch of the scene and observation mahazar under Ex. P. 2. Thereafter, P.W. 13 seized the material objects viz. M.Os. 1 to 28 in the room where the second appellant was found lying. The observation mahazar and mahazar were attested by P.W. 3. In the presence of witnesses, P.W. 13 then conducted inquest on the three dead bodies and prepared the inquest report under Exs. P. 29 to P. 31. He had also examined the witnesses who were present during inquest.
6.On 1-6-1990, at about 10.30 a.m. when he was in the Emergency Ward, P.W. 4 Dr. Keba Paulraj examined the first appellant who was brought to the Hospital by Ambulance and found him in a conscious stage. According to P.W. 4, the first appellant wanted water to drink, but did not answer his questions. P.W. 4 would also say that the second appellant was also brought along with the first appellant and after examining both of them he had admitted them as in-patients. P.W. 4 would say that the second appellant was also conscious, but, did not answer his questions. P.W. 4 has found burn injuries as well as cut injuries on the second appellant. In the wound certificate issued by him under Ex. P. 4, he found the following injuries on the first appellant.
1. Lacerated cuts base of neck x 2 both horizontal (a) 1" long (b) 3" long extending up to anterior border of left sterno clavicle mastoid.
2. 2 Parallel cuts 1" x 3/4" over dorsal aspect of 1 Metacarpal right hand.
3. 3 x parallel 1/2" cuts over dorsum right hand.
4. 3 x parallel centre cut near ulnar 3/4" cuts over left wrist.
5. 1" cut base of left thumb dorsal aspect.
6. 1-1/4" cut below little finger left dorsum.
7. Two shallow cuts over dorsum left foot.
So also, in the wound certificate issued by him under Ex. P. 5, he has noted the following injuries found on the second appellant.
Burns to face, chest, both upper limbs, front of both thighs and left scapular area @45%.
- @ 1-1/2% shallow horizontal cut right side of neck.
- 4 parallel cuts @ 1/2" each over dorsum of left hand.
- 2 parallel cuts over dorsal aspect of I Left (Proximal) metacarpal.
- 2 parallel cuts over dorsal aspect right metacarpal I @ 1" long.
- 1 cut dorsum right hand over II Metacarpal.
- 1 cut 1/2" dorsum right hand over IV Metacarpal.
- 3/4" long shallow cut below left medial maleolus.
P.W. 5 who gave treatment to the first appellant from 1-6-1990 to 24-6-1990 has issued a certificate under Ex. P. 6 for the injuries found on the first appellant and according to him all the injuries were simple in nature. The first appellant has been discharged on 24-6-1990.
7. P.W. 6 who gave treatment to the second appellant from 1-6-1990 to 16-8-1990 has given a certificate under Ex. P. 7 and according to him, the injuries found on the second appellant are grievous in nature.
8. P.W. 13 gave a requisition to the Judicial Magistrate P.W. 11 to record the dying declaration of the appellants on 1-6-1990. In pursuance of the requisitions given by the Inspector, P.W. 1 XX Metropolitan Magistrate Egmore, visited the Appollo Hospital at 6.15 p.m. and met the appellants along with Dr. Raman. She (P.W. 11) met the second appellant first. After identifying herself to the second appellant, P.W. 11 has recorded the statement given by the second appellant for the questions put to her and the statement is Ex. P. 15, P.W. 11 had seen first appellant at 6.25 p.m. along with the doctor and recorded the statement given by him under Ex. P. 16.
9. P.W. 13 has given a requisition under Ex. P. 17 to the Professor of Forensic Medicine, Madras Medical College, Madras to conduct the post-mortem on the dead body of the three children. In pursuance of the said requisition under Ex. P. 17, P.W. 12 conducted the post-mortem on the dead body of the three children at 1.30 p.m. 2.30 p.m. and 3.30 p.m. respectively. The following injuries were found on the body of Pitchu.
1. Abrasions 0.5 x 0.5 cms. on inner aspect of left knee.
2. A circular well defined complete ligature mark 0.75 cms. in width seen on front of neck at the level of thyroid cartilage 4 cms. below the right mastoid process and 4 cms. below the left mastoid process and on the back of neck it completely encircles the neck and is 2 cms. above the 7th cervical spine. On dissection the underlying tissues are normal and there is no injury to the Hyoid Bone or thyroid cartilage.
Signs of decomposition; Greenish discolouration seen on the skin on front of abdomen.
Heart : All chambers contained clotted blood.
Lungs : Markedly congested and oedematous, stomach contained 10 c.c. of brown fluid. Bladder Empty. Uterus empty.
All other internal organs were found congested. Ex. P. 18 is the post-mortem report of Pitchu. Ex. P. 19 is the report of the Chemical Examiner. According to P.W. 12 the deceased Pitchu would appear to have died of diazepam poisoning. Ex. P. 20 is her final report.
10. The following injuries were found on the body of Pushi by P.W. 12 :-
1. Abrasion 4 x 3 cms. on outer aspect of upper part of right leg.
2. A well defined circular complete ligature mark 0.5 cms. in width seen below the level of thyroid cartilage and it is 8 cms. below the right mastoid and 6 cms. below the left mastoid and on the back of neck there are 2 horizontal ligature mark 2 cms. apart from each other, the lower ligature mark is 1.5 cms., above the 7th cervical spine. On dissection the tissues underneath the ligature mark were found normal and there is injury to the Hyoid bone and thyroid cartilage. Signs of decomposition; Greenish discolouration seen on front of abdomen.
Heart : All chambers contained clotted blood.
Lungs : Markedly congested and oedematous.
Stomach : Contained 20 cc of fluid with pieces of mango and egg.
Bladder : Empty.
Uterus : Empty.
All other internal organs were found congested. Ex. P. 21 is the post-mortem report. Ex. P. 22 is the Chemical Examiner's report and Ex. P. 23 is the final report of P.W. 12. According to P.W. 12, the child Pushi would also appear to have died of diazepam poisoning.
11. The following injuries were found on the body of Tittu by P.W. 12 :-
1. A well defined complete circular ligature mark 0.5 cms. in width seen on front of neck below the level of thyroid cartilage 6 cms. below the right mastoid 5.5 cms. below the left mastoid and at the back of neck two incomplete ligature mark are seen at a distance of 3 cms. away from each other. The ligature marks on the back of neck end in the midline. The lower ligature mark is 2 cms. above the 7th Cervical spine. On dissection the tissues under-neath the ligature mark were found normal and there is no injury to the Hyoid Bone or the thyroid cartilage.
Heart : All chambers contained clotted blood.
Lungs : Congested and oedomatous. Stomach contained 50 cc of thick yellow fluid with particles like egg. Bladder : Empty.
All other internal organs were found congested.
Ex. P.24 is the post-mortem report. Ex. P.25 is the Chemical Examiner's report and Ex. P.26 is the final report. According to P.W. 12. the child Tittu would appear to have died of diazepam poisoning. She has stated that the diazipa poison is in the sleeping pills. She has also stated that the three children would appear to have died 36 hours prior to post-mortem.
12. P.W. 13 has examined P.W. 7, the owner of the property where the first appellant was carrying on business and acording to P.W. 7 the first appellant who had taken portion of the 8th floor on a rent of Rs. 6,250/-, has not paid the rent from February, 1990. According to P.W. 8, the owner of the house bearing Door No. 5, III Street, Walace Garden, the first appellant who is a tenant under him on a rent of Rs. 3,500/-, has not paid the rent from February, 1990.
13. P.W. 13 had requested the Metropolitan Magistrate to send the material objects seized by him for chemical examination on 6-6-1990. Accordingly, P.W. 9 the Assistant Treasurer of the Chief Metropolitan Magistrate, he has sent the material objects handed over by P.W. 13 for examination by Chemical Analyst along with a covering letter of the Magistrate under Ex. P-9. Ex. P-10 to P-13 are the reports of the Analyst. The Investigating Officer has arrested the appellants on 2-6-1990. After completing the investigation, he has filed a charge-sheet against the appellants on 14-3-1991.
14. The first appellant has stated before the learned Sessions Judge when questioned with regard to the circumstances appearing against him under S.313 of the Code of Criminal Procedure, that he returned home after attending a dinner with his friends and slept in the house and regained consciousness only two or three days latter. He had stated that he has been paying the rent regularly to both P.WS. 7 and 8. As regards the other circumstances, appearing against him, he has pleaded ignorance. When the second appellant was questioned by the learned Sessions Judge under S.313 of Code of Criminal Procedure with regard to the circumstances appearing against her, she has stated that at about 11 p.m., on that date, on seeing the conditions of the children, she became unconscious and does not know what happened and that she was unconscious for two or three days. The appellants have not examined any witness in support of their contention.
15. The learned Sessions Judge on a consideration of the materials placed before him, has convicted and sentenced the appellants as aforesaid.
16. The learned Senior Advocate Mr. N. T. Vanamamalai appearing for the appellants has argued that the prosecution has not made out any case against the appellants for Convicting them u/S. 30 and 209 of the Indian Penal Code and yet the learned Sessions Judge has convicted the appellants under the above sections relying upon the extra-judicial confession said to have been given by the first appellant to P.W. 1 and the same has to be set aside on several grounds. According to the learned counsel appearing for the appellants, the complaint under Ex. P-1 would not have been given by P.W. 1 in the time and manner alleged, that the prosecution has failed to explain the delay in first information report, that the prosecution has not established the motive for the occurrence and finally the conviction and sentence cannot be appreciated in view of the failure of the trial Court Judge to put the circumstances appearing against the appellants to the appellants to enable them to give an explanation during the questioning under S. 313 of Code of Criminal Procedure and when all these matters are considered, the appellants would have to be acquitted. A specific contention was urged that the first appellant could not have made an extra-judicial confession to P.W. 1 for the first information report preferred after the alleged extra-judicial confession was made on its mention of the same. The learned Public Prosecutor Mr. Sriramulu on the other hand would contend that none of the defects said to be present in the prosecution case are really defects in order to set aside the conviction and sentence imposed on the appellants. He particularly urged, that Ex. P-1 would certainly reveal the extra-judicial confession aspect. Now, let us consider the rival contentions.
17. The first and foremost contention of the counsel appearing for the appellants is that Ex. P-1 the complaint could not have been given by P.W. 1 in the time and manner alleged and the delay in giving the complaint would justify an inference that it has been prepared after the deliberation subsequent to the arrival of the Investigating Officer to the scene of occurrence. P.W. 1 has stated that the police arrived to the scene of occurrence within a short-time of his making a phone call to the Central Room and he is supported on this aspect by P.W. 2. P.W. 13 would say that he got the phone message from the Central Room at about 10 a.m. and proceeded to the scene of occurrence at 10.10 a.m. and went inside the house after break opening the door and found the dead body of the children as well as the appellants and thereupon asked P.W. 1 as to what happened and P.W. 1 has given the complaint under Ex. P-1. It can safely be held that the complaint given by P.W. 1 has been reduced to writing between 10.10 a.m. and 11.00 a.m. The First Information Report has been registered by P.W. 13 in Crime No. 313/90 at 11.00 a.m. Both the complaint under Ex. P-1 and the express first information report under Ex. P-27 have been received by the Magistrate at 2 p.m. on the same date. In the meanwhile, P.W. 13 had gone to the scene of occurrence, took up investigation and sent for the Ambulance and sent the appellants to Appollo Hospital for the treatment. Therefore, it cannot be stated that there was any time available for him for deliberation. The fact that the complaint as well as the express first information report have been received by the concerned Magistrate at 2 p.m. on the same date would show that the contention of the learned counsel appearing for the appellants that Ex. P-1 would not have been given by P.W. 1 in time and manner alleged is not a tenable one.
18. According to the learned counsel appearing for the appellants, in Ex. P-1. Moses has stated that when he pressed the calling bell, the first appellant opened the door and on seeing him, the first appellant advised him not to save him and go away and whereas in his evidence. P.W. 1 has stated that the first appellant who had opened the door in response to the calling bell, has advised him not to touch anything and go away and it is a vital contradiction between the evidence of P.W. 1 and Ex. P-1. The statement of P.W. 1 in Court and his version in Ex. P-1 cannot be considered as a vital contradiction with regard to what has been stated by the first appellant to him. The fact remains that when the door was opened by the first appellant, he was found bleeding all over the body and he had advised to Moses to go away from the scene of occurrence. Ex. P-1 has been given on 1-6-1990. Nearly one year and eight months later P.W. 1 has been examined in Court on 17-2-1992. Therefore, the minor difference between his version in Ex. P-1 his evidence as P.W. 1 cannot be considered as a major contradiction to disbelieve the evidence of P.W. 1 since human memory cannot be so perfect after a lapse of such a long time. Therefore, the evidence of P.W. 1 cannot be disbelieved on this ground.
19. The learned counsel appearing for the appellant would also argue that in Ex. P-1, Moses has stated that he learnt that his boss and his wife have murdered the children by strangulating and by administering poison and that the post-mortem has been conducted on the body of the three children only the next day and it is not known as to how Moses has learnt that his boss has strangulated the children even when he gave a complaint under Ex. P-1 and that gives room for suspicion. It is to be noted that Moses had seen the children lying dead on the cot when he went inside the house along with the Investigating Officr. The Investigating Officer has noted the same and in the observation mahazar prepared by him. He has specifically stated that ligature mark is seen on the neck of the three children. This observation by the Inspector in the observation mahazar would reveal that the ligature mark on the neck of the three children were visible even for a naked eye. Therefore, there is no wonder P.W. 1 had also seen it and has mentioned it in the complaint under Ex. P-1. We cannot overlook the evidence of P.W. 1 had accompanied him, inside the house. It does not surprise us, that the claim of P.W. 1 that he learnt all about crime from the first appellant, soon after he went in cannot be brushed aside as insignificant and the indication in Ex. P-1 would suffice to uphold that the first appellant did confess to P.W. 1. Detailed narration of every facet is not to be expected in the first information report. Therefore, it cannot be stated that on account of the version of Moses in the complaint that he learnt that the children should have been murdered by his boss and his wife by strangulation and administering poison, it should be held that the complaint should have been prepared after deliberation.
19A. The learned counsel appearing for the appellants has also argued that the prosecution has failed to prove the motive aspect in this case, in that no evidence has been let in by the prosecution to show that the appellants were in strained circumstances as stated by P.W. 1, as having been informed to him by the first appellant and that the prosecution has not seized the cheques said to have been returned and above all, it is not mentioned by Moses in Ex. P-1. about the statement of the first appellant to him with regard to any strained circumstances. It is a well established principle that the first information report is not an encyclopaedia. Therefore, the failure of Moses to mention in, Ex. P-1 as to what regarding his financial strain and return of cheques cannot be a ground to disbelieves the evidence of P.W. 1, P.W. 13 has examined P.W. 7 the Proprietor of the portion which the first appellant has taken on lease to conduct his business in Jawar Plaza. So also P.W. 8 the owner of the house where the appellants are residing has been examined by P.W. 13. Both P.Ws. 7 and 8 would say that the first appellant has not paid the rent from February, 1990. P.W. 2 the Office Manager would say in his evidence that the business of the first appellant was a competitive one and it was moderate at the time of the occurrence. It is stated by P.W. 1 that there are nearly 15 to 20 people working under the first appellant in his office and 4 or 5 persons are working in the kitchen; when the first appellant is having such a big establishment unless the business is a flourishing one, it cannot be stated that the financial condition of the appellants was satisfactory to him. In the inquest report also, the financial strain of the first appellant has been mentioned as spoken by the witnesses examined at the time of the inquest. Therefore, the failure of Moses to mention the financial strain in the complaint and his evidence regarding the same at the time of the trial cannot be said to be an improvement made by him. The arguments of the learned counsel appearing for the appellants that there is no motive for the appellants to commit the murder and the evidence of P.W. 1 has to be discarded on that ground is not convincing and acceptable. In this connection, we would also refer to the decision reported in Mulakh Raj v. Satish Kumar (1992 SCC (Cri) 482), wherein the Apex Court has held as follows :
"In cases of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never indispensable for conviction."
Therefore, even if motive is not established as argued by the learned counsel appearing for the appellants, we are of opinion that if, the circumstantial evidence with regard to the offence is proved, the appellants cannot escape their liability on the ground that there is no motive.
20. The learned counsel appearing for the appellants has argued that it is the case of the prosecution that 10 to 15 persons are employed under the first appellant and in the house where the appellants are residing, there is a kitchen in which 4 or 5 persons are employed and 2 persons employed in the office and it is highly improbable that none of them is aware of the incident. The evidence of P.W. 1 is to the effect that the first appellant is having his office in the ground floor of his residential portion in which there are two persons working in the office and 4 or 5 persons working in the kitchen. But, he has further stated that the kitchen in the ground floor is used for the purpose of preparing food for those who took the Convention Hall run by the first appellant for rent, and that there is a kitchen in the first floor where the appellants are residing. The occurrence having taken place during night inside a closed house, we cannot expect any person working in the office to be present and know as to what happened. The kitchen in the ground floor in which 4 or 5 people used to work will be working only if the Convention Hall had been leased and engaged. There is no evidence that the Convention Hall had been leased and the kitchen in the ground floor was being put to use by the appellants on the day in question. The inference, therefore, can only be that there was no one in the ground floor of the premises and in the first floor in which the appellants are residing.
21. The learned counsel appearing for the appellants has argued that the first appellant is said to have given an extra-judicial confession to Moses and it was on the basis of this extra-judicial confession, the conviction has been given to the appellants and that the confession statement said to have been given by the first appellant being a circumstance appearing against the appellants, it should have been put to the appellants during their examination under S. 313 of Criminal Procedure Code and in view of the fact that it has not been put to the appellants, they are entitled to acquittal. The learned counsel appearing for the appellant would rely upon the decision reported in State of Maharashtra v. Sukhdeo Singh where it has been held as follows :
"Section 313 of the Code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his respond solicited. The words 'shall question him' clearly brings out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under S. 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record."
In the above decision, the Supreme Court has also held that no matter how weak or scanty the prosecution evidence is in regard in a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. The learned counsel appearing for the appellants would therefore argue that when the appellants have not been put any question with regard to the alleged extra-judicial confession of first appellant to P.W. 1, during the examination of the accused under S. 313 of Code of Criminal Procedure, no conviction can be based on the same. According to learned Senior Counsel it cannot be disputed that it has been consistently held by the Supreme Court that any circumstances in respect of which an accused was not examined under S. 313 of the Code of Criminal Procedure cannot he used against him.
22. The learned Public Prosecutor Mr. Sriramulu would on the other hand argue that though the fact that the accused are not questioned with regard to the circumstances appearing against them in the examination under S. 313 of Criminal Procedure Code, is a serious irregularity which could not be ignored and it could be so only if prejudice was thereby caused and such an irregularity would entail retrial or further questioning and that before a retrial or further questioning could be ordered, the Court must be squarely satisfied about the prejudice having been caused and relied upon the decision reported in Kedar Nath v. State of West Bengal for the above proposition. In the decision reported in Tara Singh v. State , it has been held that an accused must be questioned separately about each material circumstance which is intended to be used against him and that the whole object of S. 342, Code of Criminal Procedure is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that every error or omission in this behalf does not necessarily vitiate a trial because the errors of this type fall within the category of curable irregularities.
23. The learned Public Prosecutor would also argue that in the present case, it cannot be stated that any prejudice has been caused to the appellants on account of the failure of the trial Court to put a specific question with regard to the extra-judicial confession made by the first appellant to P.W. 1, in view of the fact that the trial Court has put a question as to whether he has got anything more to say in this case, for which the first appellant has only stated that he came home after a dinner late in the night and slept and regained consciousness only two or three days later and the second appellant has stated that at 11 p.m., when she saw the condition of the children, she became unconscious and does not know what happened and that she was unconscious for two or three days and these answers given by the appellants to the specific question put to them by the trial Court as to whether they want to say anything else, would only indicate that they are completely denying any knowledge of the occurrence and does not want to place any material before the trial Court and therefore, it cannot be stated that there was any prejudice caused to the appellants on account of the failure of the trial Court to put a specific question with regard to the alleged extra-judicial confession of the first appellant to P.W. 1. The learned Public Prosecutor relies upon the decision reported in Bimbadhar v. Orissa State in support of his argument that where the accused was put the question "Have you got anything to say on the evidence of the witnesses," it was held by the Supreme Court that, that was sufficient in the circumstances of the case to show that the attention of the accused was drawn to the prosecution evidence and that it cannot be said that the accused has been in any way prejudiced by the way he had been questioned under that section.
24. It was also argued by the learned Public Prosecutor Mr. Sriramulu that it has been held in the decision reported in Shivaji v. State of Maharashtra as follows :
"It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperial the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from consideration. It is also open to the appellate Court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial Court he would not have been able to furnish any good ground to get out of the circumstances on which the trial Court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as regards compliance with S. 342. Cr.P.C. (old Code) the omission has not been shown to have caused prejudice to the accused. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial Judge may be a little fagged out."
The learned Public Prosecutor after referring to the above decision has argued that it is open for the accused to state what explanation the accused has, as regards the circumstances against him, but not put to him during the trial Court and if the accused is unable to offer the appellate Court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists even if the accused had been questioned at the proper time and, therefore, it cannot be contended that on account of the failure of the trial Court to put the circumstances appearing against the accused viz., the extra-judicial confession of the first appellant to P.W. 1 and therefore prejudice has been caused to the appellants and they should be found not guilty on that score. The learned senior Advocate Mr. Vanamamalai would, in reply, argue that it has been a recognised principle of law as laid down in the decision reported in Bibhuti v. State of West Bengal that it is from the scheme, purpose and language of S. 342 of the Criminal Procedure Code, their Lordships have been driven to the conclusion that the examination under S. 342 of the Criminal Procedure Code must be on the accused person and not his pleader and there are exceptional cases when an examination of an accused personally under S. 342 of the Criminal Procedure Code is not necessary or possible just as a case where the accused is a company or other juridical person, where the accused cannot be examined personally and it may be that the Court may then examine a director or some other agent on its behalf. According to the learned counsel appearing for the appellants, exceptional cases apart, only the accused in person can be examined under S. 342 and where the appellants have not been examined under S. 342 of the Criminal Procedure Code, with regard to the circumstances which appear against them in the evidence the prosecution is not justified in relying upon it. The learned Advocate for the appellants Mr. B. Kumar has argued that under S. 313 of the Code of Criminal Procedure the questioning of the accused has to be done before the accused is called upon to enter into his defence and in the present case, the appellants having adduced arguments in the trial Court, it is not open for the appellate Court to put any question with regard to the circumstances appearing against the first appellant. But the learned counsel appearing for the appellants Mr. B. Kumar has no answer to the proposition laid down in the decisions reported in Shivaji v. State of Maharashtra relied by the learned Public Prosecutor which enables the appellate Court to examine the counsel for the appellants with regard to the circumstances regarding which no question has been put to the accused during the examination under S. 313 of Code of Criminal Procedure. Mr. Kumar has also argued that the Court can exclude that part of the evidence of the prosecution witnesses which is against the accused/appellant and-which has not been put to the accused during questioning u/S. 313 of Code of Criminal Procedure and decide the case on other materials that is available. It is to be noted that the object of examination of the accused under S. 313 of Code of Criminal Procedure is to enable him to offer an explanation with regard to the circumstances appearing against him. We have already seen that even the question as to whether the accused has got anything more to say will be sufficient to satisfy the requirements. In the present case, the first appellant has only chosen to say that he fell asleep after coming late home and regained consciousness only after two or three days. The second appellant had stated that on seeing the condition of the children at 11 p.m., she became unconscious and regained consciousness only two or three days later. It is not in dispute that the first appellant had injuries all over his body and had treatment in the Appollo Hospital. So also the fact that the second appellant had cut and burn injuries all over her body and she also taken treatment in the hospital for more than two months is not in dispute. The appellants have not given any explanation as to how they have sustained these injuries. When P.W. 1, P.W. 2 and the Investigating Officer went to the house of the appellants, they have found the three children dead in their bed and the appellants have sustained injuries. There is no other intimate in the house. The door was broke open before entry was made by the Investigating Officer and others. In spite of it, the appellants have not given any explanation for the injuries on them as well as the death of their three children. It has been held in the decision reported in Jagjit Singh v. State of Himachal Pradesh (1994 SCC (Cri) 176) that in a case of circumstantial evidence in a criminal trial, a dead body with fatal injuries found in the room of the accused, the accused is bound to give an explanation which should at least look probable and if the explanation given by the accused is found to be palpably false, it has to be held that the circumstances are sufficient to establish the guilt of the accused. All that had happened inside the closed room can naturally be known only to its occupants. The children of the appellants are now dead and hence silenced beyond redemption. This leaves only these two appellants as the persons who should have been fully acquainted with the manner in which the three deceased had met with their death and the mode in which these two appellants themselves had sustained the injuries found on them. Though conscious, they were unwilling to speak out to the Doctor. Under S. 106 of the Indian Evidence Act, if any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. The principle underlying S. 106 is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the party concerned. The first exception to this general rule is when there is a presumption either of fact or of law one way or the other, then arises the second exception embodied in S. 106. If a fact is within the special knowledge of a party, it is futile to force the other party to prove it. Such proof can be affirmative or negative in character. We are aware that S. 106 is certainly not intended to relieve the prosecution of its initial onus. On the contrary, it is designed to meet certain exceptional cases, in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which were specially within the knowledge of the accused and which he could prove without difficulty or inconvenience. It is not the law of the country, that the prosecution has to eliminate all possible evidence and circumstances which may exonerate him. If those facts are within the knowledge of the accused, then he has to prove them. To reiterate the prosecution has to establish a prima facie case, in the first instance. It will not be enough to establish facts, which give rise to suspicion and then by reason of S. 106 of the Evidence Act, throw the onus on the accused to prove his innocence. Useful reference can be made on this aspect to the law laid down by the Supreme Court in Shambhu Nath Mehera v. State of Ajmer and Krishna Kumar v. Union of India . We are bound to state, that the burden cast on the accused is not so heavy as it is on the prosecution. Ignoring the circumstantial evidence viz., the extra-judicial confession given by the first appellant to P.W. 1 on the ground that the same has not been put to the appellant during examination under S. 313 of the Code of Criminal Procedure, would in our opinion, not further the cause of justice. In the present case, the appellants having failed to give an explanation as to how three children were found dead in their bed room and they were also seriously injured, we have decided to give an opportunity to the first appellant to say his version with regard to the circumstances appearing against him in the form of an extra-judicial confession made by firm to P.W. 1. Even though in the decision reported in Shivaji v. State of Maharashtra , the Supreme Court has held that the counsel appearing for the appellant can be called upon to show what explanation the accused has as regards the circumstances established against him, but not to him, we have extended the same principle to the first appellant instead of calling upon the counsel for the appellants to show what explanation the first appellant might have given if the circumstances appearing against him in the evidence of P.W. 1, had been put to him. The first appellant has therefore been directed to be present before us on 9-1-1995 and three circumstances appearing against him in the evidence of P.W. 1 have been put to him. The first one is with regard to financial condition of the appellant and their decision to die wholesale. The second circumstance is the administration of sleeping pills along with the milk to the children and the self-immolation of the second accused by pouring oil over her and the third is the inflicting of injuries by the first appellant by cutting himself after getting heavily drunk in order to end his life. Of course all these three facts form part of the whole extra-judicial confession. The first appellant has been asked to state what is the answer he would have given if the learned Sessions Judge has put the above circumstances to him and the first appellant has replied that what Moses has stated is totally false and that he did not tell him anything. When the first appellant is put another question as to what is the answer he would like to give before us, he has stated the same answer. The first appell ant has stated that the evidence of P.W. 1 is totally false, that he was unconscious, that he regained consciousness in the hospital and he has not spoken anything to P.W. 1. When these answers were recorded, it goes without saying that the first appellant has no explanation for what he has stated to P.W. 1 when Moses questioned him as to why such thing has happened. When we come to that conclusion, the principle laid down in the decision reported in Jagjit Singh v. State of Himachal Pradesh (1994 SCC (Cri) 176) has to be invoked and it would lead us to the inference that the appellants who were found along with the dead bodies of the three children are unable to give explanation and therefore, the circumstances in which the appellants were found in the room by P.Ws. 1, 2 and the investigation Officer are sufficient to establish the guilt of the appellants.
25. The learned Public Prosecutor would stress that the conduct of first appellant also has to be taken into consideration in order to appreciate the evidence of P.W. 1. According to the learned Public Prosecutor, none of the appellants has raised any alarm either during the occurrence or when P.W. 1 knocked at the door in the morning. He would further argue that if the injuries have been caused on them by third parties, and the children are also murdered by some other persons, one would expect the appellants to call for any help from outside or report to the police or try to get treatment for the injuries sustained by him and any of these things would have been done by them in the night and even assuming that they could not do it during night, they would have sought the help of P.W. 1 when he knocked at the door either to summon the police or get medical facilities or take them to the hospital etc., and that they have not chosen to do any of these things which can be expected upon a normal person if he was a victim of third parties. We see considerable weight in this argument of the learned Public Prosecutor and it also goes to strengthen the prosecution version. In this connection, we wish to refer to the cross-examination of P.W. 1 in which a feeble attempt has been made to show that the appellants and their children are attacked by some third parties by asking him as to whether it is not a fact that the airconditioner in the room has been removed and the place where the air-conditioner was placed has not been filled up in the wall and whether it is not a fact the first appellant has dismissed an employee by name Veeramani and he has filed an industrial dispute case before the Labour Court. As regards the removal of the air-conditioner and the existence of an opening in its place, the observation mahazar does not show the same. It only reads as if the air-conditioner is fixed to the wall. Therefore, the attempt during cross-exainination that somebody might have entered into the house of the appellants through the opening caused by the removal of the air-conditioner, falls to the ground. As regards the dismissal of veeramani, if the murder of the children and the attack on the appellants was by some other person, who has grouse on account of the dismissal of veeramani, against the first appellant is concerned, certainly the first appellant would have stated it to P.W. 1 and the Investigating Officer. But according to P.W. 1, what the first appellant has stated is only to go away and not to touch anything. P.W. 4 who gave the first aid to both the appellants on their being brought to the hospital, would say that both the appellants were conscious during admission in the hospital and they did not answer his questions as to how they have sustained injuries. According to P.W. 4, the first appellant even asked for water to drink but did not reply to his questions. We are of opinion that it cannot be conduct of either of the appellant to keep silence if the murder of the children and the attack on them was done by some other person. This fact also lends support to our conclusion that the appellants have to be found guilty of the offence of murder with which they are charged on account of the failure to give any explanation for the death of their three children. The medical evidence adduced by P.W. 12 would show that the death of the three children was due to the administration of diazopam poisoning.
26. Before concluding we wish to observe that the dying declaration recorded by P.W. 1 is of no use to either party since the learned Magistrate has not chosen to give the necessary warning before recording their statement in order to treat the same as a statement given under S. 164 of the Code of Criminal Procedure, or as a dying declaration. It has been argued by the learned counsel appearing for the appellants that in the absence of any eye-witness, the entire prosecution relies upon only on the circumstantial evidence and in the present case, the circumstances appearing against the appellants cannot be said to be complete without any missing link and therefore, at any rate the appellants are entitled to the benefit of doubt. We have seen in the discussion supra that the various circumstances which are said to be missing in the chain of events according to the appellants are not actually missing and the circumstances appearing against the appellants are such that the prosecution has established that the offence of murder has been committed only by the appellants and not by anybody else beyond all reasonable doubts. Therefore, the arguments of the learned counsel appearing for the appellants that at any rate they are entitled to benefit of doubt is not a tenable one.
27. In the decision reported in State of West Bengal v. Orilal Jaiswal, (1994 SCC (Cri) 107), their Lordships have held as follows :
"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law."
When we approach to case on hand in the light of the above decision, we have to necessarily hold that the doubts and suspicions said to have been existing in the prosecution case by the learned Advocates appearing for the appellants are only fanciful doubts and lingering suspicions and they cannot be nurtured to destroy the social defence. We are convinced that the prosecution has proved the charges under Section 302 of Indian Penal Code (three counts) framed against the appellants beyond all reasonable doubts and the conviction and sentence imposed on them by the learned IV Additional Sessions Judge, Madras have to be confirmed.
28. Coming to the charges under Section 309 of Indian Penal Code, with which the appellants have been found guilty and convicted by the trial Court, we wish to state that the conviction and sentence imposed on the appellants under Section 309 of Indian Penal Code cannot be sustained in view of the decisions reported in P. Rathinam v. Union of India, wherein it has been held by the Apex Court as follows :
"Section 309 of the Penal Code deserves to be effaced from the statute book to humanise our penal laws. It is a cruel and irrational provision, and it may result in punishing a person again who has suffered agony and would be under-going ignominy because of his failure to commit suicide. Then an act of suicide cannot be said to be against religion, morality or public policy, and an act of attempted suicide has no baneful effect on society. Further, suicide or attempt to commit it causes no harm to others, because of which State's interference with the personal liberty of the concerned persons is not called for."
The Supreme Court had held, "we therefore hold that Section 309 of Indian Penal Code violates Article 21, and so, it is void." The trial judge has found the appellants guilty under section 309 of Indian Penal Code in the year 1992 on 9-4-1992. But in view of the decision referred above by us of the year 1994, we are constrained to hold that the appellants cannot be convicted and sentenced to undergo imprisonment for an offence under section 309 of Indian Penal Code even though the conviction and sentence imposed on the appellants under section 302 of the Indian Penal Code have to be confirmed. In that view, we hold that the appellants are to be acquitted of the charge under section 309 of the Indian Penal Code.
29. In the result, the conviction of the appellants 1 and 2 under section 302 of Indian Penal Code (3 counts) each and life sentence imposed on them are confirmed. The appellants are however, acquitted of the charge under Section 309 of the Indian Penal Code, in view of the declaration of the Supreme Court that Section 309 of the Indian Penal Code violates Article 21, and so, it is void. With the above modification, the appeal is dismissed.
30. Appeal dismissed.