Madras High Court
- vs - on 1 October, 2021
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 23.11.2021
Judgment Pronounced on : 10.12.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
R.T.(MD)No.5 of 2021
and
CRL.A.(MD)No.475 of 2021
R.T.(MD)No.5 of 2021:
State Rep. by
The Inspector of Police,
Malaiyur Police Station,
Pudukkottai District.
(Crime No.27 of 2018) ... Complainant
-vs-
Anand ... Respondent
Referred Trial under Section 366 of the Code of Criminal Procedure on
the judgment of the learned Sessions Judge, (Mahila Court), Pudukkottai, in
S.C.No.133 of 2018, dated 01.10.2021.
For Complainant :: Mr.Hassan Mohammed Jinnah
State Public Prosecutor
For Respondent :: Mr.P.Ganapathi Subramanian
1/19
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
CRL.A .(MD)No.475 of 2021:
Anand ... Appellant/
Sole Accused
-vs-
State Rep. by
The Inspector of Police,
Malaiyur Police Station,
Pudukkottai District.
(Crime No.27 of 2018) ... Respondent/
Complainant
Criminal Appeal filed under Section 374 (2) of the Code of Criminal
Procedure against the judgment of the learned Sessions Judge, (Mahila
Court), Pudukkottai, in S.C.No.133 of 2018, dated 01.10.2021.
For Appellant :: Mr.P.Ganapathi Subramanian
For Respondent :: Mr.Hassan Mohammed Jinnah
State Public Prosecutor
COMMON JUDGMENT
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
This is a case of matricide. Thilagarani, the mother aged about 45
years was done to death by Anand her elder son aged about 23 years.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
2. The occurrence took place on 18/03/2018 at about 8.30 am in a
public place, while Thilagarani the victim of the crime was waiting along
with her mother ( Lakshmi) and her younger son (Muthu) at the bus – stop
on Maravanpatti Main Road, Karambakudi, Pudukottai District.
3. Previous enmity over a property is attributed as motive for the
murder. The accused was charged for offence under section 302 IPC. After
trial, the court held the accused guilty of offence punishable under section
302 IPC. Convicted and sentenced to DEATH and to pay a fine of
Rs.50,000/- in default, to undergo 2 years S.I. Ordered to hang by neck till
death subject to confirmation of High Court in terms of section 366 of
Cr.P.C.
4. In reverence to section 366 Cr.P.C, the judgment of the trial court
is submitted to the High Court for confirmation. Same is taken on file as RT
5/2021. The aggrieved accused has filed appeal against conviction in
Crl.A.(MD).No.475/2021.
5. The learned Public Prosecutor took us to the evidences, the
relevant portions of the depositions of P.W.1 to P.W.12 and the exhibits P1
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
to P16 and submitted that the case of the prosecution was established
through eye witnesses, the extra judicial confession of the accused and
recovery of material objects used for the crime.
6. Per contra, the learned counsel for the respondent/accused
submitted that the prosecution has failed to prove motive and the evidence
of P.W.1 to P.W.3, who claims to be the eye witnesses to the occurrence and
failed to support the prosecution in entirity, hence P.W.1 was treated hostile
and the rest of the witnesses for prosecution are not reliable witnesses.
Therefore, benefit of doubt must be extended to the accused. In any
event, this is not a rarest of rare case to impose death penalty.
7. The case of the prosecution unfurled through witnesses is that on
18/03/2018 at about 8.30 am PW-1 Lakshmi, her daughter Thilagarani
( deceased - victim) and her grand son Muthu were standing in the bus
stop to go to Pudukottai Church. At that time, Anand ( son of the deceased
- victim) came in his motor bike, parked it near a mutton stall near the bus
stop and went behind Thilagarani, attacked on her head with an aruval
(billhook). When Thilagarani tried to cover her head from further attack, the
next blow hit at her left hand. Her thumb and index finger of the left hand
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
got severed. The third blow which fell on her right hand severed her thumb
and 3 fingers except the little finger of her right hand. Thilagrani collapsed
and fell down. The accused kept his leg on the chest of his mother and cut
her head. Took away the severed head in a wire bag and left in his
motorbike bearing registration number TN 55 AY 1112. The incident was
witnessed by Chinnaiah (PW-2) the owner of the Tea Shop near the bus
stop. Srinivasan (PW-3) and Kannaiah (not examined) who were taking tea
in Chinnaiah tea shop.
8. On the same day at about 1.00 pm, the accused went to the office
of the VAO at Karambakudi. He produced the severed head of Thilagarani
and the Aruval. He confessed to PW-5 Suresh, the VAO of Ambukoil Village
who was in additional charge of Karambakudi village, that due to property
dispute he murdered his mother near the Maravanpatti bus stop. The
statement of the accused was reduced into writing by the VAO in the
presence of his assistant Moorthy. The accused signed the statement
(Ex P-4). Thereafter, the accused was taken to the Malaiyur police Station
at about 2.30 pm and produced before the Sub-Inspector of Police along
with the Aruval (M.O 1), the wire bag used for carrying the severed head of
the deceased (M.O-2) and the motor bike used by the accused (M.O.-3).
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
9. In between, Lakshmi who is the mother of the victim, went to
Malaiyur Police Station at about 9.30 am and informed about the incident
orally to the Sub-Inspector of Police (PW-10). The SI of police in turn
registered FIR ( Ex P-6) in Cr.No.27/2019 against the accused for offence
under section 302 IPC and forwarded the same to the Judicial Magistrate at
Alangudi and placed the FIR copy to the Inspector of Police (PW-12) for
investigation.
10. Thiru Karthigaisamy (PW-12) Inspector of Police attached to
Karambakudi Police Station took up the investigation visited the spot at
10.45 am. Inspected the scene of crime. Prepared the observation mahazar
(Ex P-2) and seized mud with and without blood stains ( M.O 4 and M.O.5);
A pair of slipper( M.O 6) and the hair of the deceased (M.O 7) from the SOC
and prepared seizure mahazar (Ex P-3) in the presence of the witnesses
Selvaraj (PW-4) and Suriyamoorthy. The rough sketch of the Scene of
occurrence drawn by Investigating Officer in the presence of the witnesses
is EX.P-8. He conducted inquest regarding the headless corpse between
12.00 noon to 2.00 pm and prepared the inquest report (Ex P-9). Entrusted
women constable Agila (PW-8) with a request letter to the Pudukottai
Government Hospital and arranged for taking the corpse for autopsy.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
Returned back to the Police Station, PW-12 recorded the statement of
accused. Seized the severed head, wire bag, motor cycle, the aruval
(billhook) and the blood stained lungi (M.O.8) and shirt (M.O.9) of the
accused in the presence of Selladurai VAO (PW-6) and his Assistant
Balakrishnan under the mahazar Ex P-5, at about 15.45 hrs. On the same
day, the accused was arrested and produced before the Judicial Magistrate
for judicial remand.
11. In the post mortem report Ex.P7 the following external injuries
were found on the deceased body.
External Injuries:
“1. Scalp: A star shaped chop wound with six different
sized projections of the star shaped wound, clearn contused
margins, wide gaping between the chopped tissues and
exposing the underlying bones of the skull, situated over the
vertex. The star shaped wound was formed due to the
intersection of three chop wounds meeting at one point.
Description of those three chop wounds are as follows:
a) First chop wound, measuring 15 cms x 03
cms x skull bone deep situated at a point 06 cm
from the external occipital protruberance crossing
the right parietal and left temporal region and
ending at a point 08 cm from the left eyebrow.
b) Second chop wound measuring 12 cms x 03
cms x skull bone deep situated at a point 08 cm
from the external occipital protruberance crossing
the left parietal and right temporal region and
ending at a point 09 cm from the right eye brow.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
c) Third chop wound measuring 10 cms x 03
cms x skull bone deep situated at a point 07 cm
from the right mastoid protruberance crossing the
right parietal and left parietal region and ending at a
point 09 cm from the left mastoid protruberance.
All these three chop wounds intersected at appoint 15 cms
above the external occipital protruberance over the vertex,
thereby giving the appearance of a star shped chop wound.
2. Decapitation at the level of C3-C4 vertebra, exposing cut
ends of the muscles, vessels, nerves and fractured ends of
vertebra, blood effused around.
3. Stab wound measuring 04 cms x 01 cm x chest cavity deep
present over back of middle of chest situated 12 cms from
the right shoulder joint.
4. Stab wound measuring 03 cms x 0.5 cm x chest cavity deep
present over back of right side of chest situated 02 cms
below the injury no.3.
5. Stab wound measuring 05 cms x 02 cm x chest cavity deep
present over back of right side of chest situated 07 cms
below the injury no.4.
6. Stab wound measuring 07 cms x 02 cms x 1 cm deep
present over back of left side of chest situated 04 cms below
the left shoulder joint.
7. Stab wound measuring 06 cms x 01 cm x 02 cms deep
present over back of left side of chest situated 07 cms to the
right side of injury no.6.
8. Stab wound measuring 09 cms x 03 cms x underlying muscle
deep present over top of left shoulder joint.
9. Thumb, index finger and thenar eminence of left hand
chopped off together exposing underlying muscles, vessels,
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
nerves and chopped ends of bones, blood effused around.
10.Distal Phalanx of right middle finger and distal and
intermediate phalanx of right ring finger chopped off
exposing underlying muscles, vessels, nerves and chopped
ends of bones, blood effused around.
11. Thumb and index finger of right hand chopped at the level
of distal phalanx with skin connected to the proximal
structures exposing underlying muscles, vessels, nerves
and chopped ends of bones, blood effused around.”
12. The cross-examination of the eye witnesses and witnesses to
recovery of material objects had not impeached much to shake their
credibility. Therefore, the contention by the learned counsel for the
accused/appellant that failure to prove motive or non-examination of the
deceased younger son Muthu and delay in forwarding M.O's to serology test
are not vital flaw or ommission to nullify the direct evidence of P.W.1, P.W.2
and P.W.3.
13. The facts of the case is very straight and simple. The victim lady
Thilagarani, about 10 years ago, was tried for the offence causing death of
her husband Thangaraj by smashing his head, throwing stone during his
sleep. In the said case, the deceased Thilagarani was tried, but acquitted.
The said Thangaraj during his life time, had advanced money to one
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
Ayyappan Chettiar and Gopal Konar for purchase to their land. Due to his
sudden death and his wife Thilagarani being accused of his murder, there
was no progress in the transfer of the property from the vendors. The
accused herein was pressurising Thilagarani to arrange and give consent for
transferring the said property in his name, which the deceased refused.
Therefore, there was enmity prevailing between the deceased and her
son/the accused. This was the motive for the brutal attack on the deceased
by the accused on the fateful day.
14. P.W.1-Lakshmi, who is the witness to the crime and also the
mother of the deceased has vividly deposed how the accused caused and
attacked the deceased. Her evidence infact singularly enough to hold the
accused guilty of the charge. This part of her testimony is natural, true and
wholly reliable. She had not spoken about the previous enmity and motive,
in fact, she has feigned ignorance about this in her chief-examination.
Therefore, she was treated hostile by the prosecution. In the cross-
examination by the prosecutor done with the permission of the Court, this
witness again turned turtile and has spoken about the property dispute and
enmity, which she has also reiterated during the cross-examination on
behalf of the accused.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
15. P.W.2 Chinnaiah and P.W.3 Srinivasan are the other eye witnesses
who have corroborated P.W.1 regarding the overt act of the accused causing
injuries and beheading the victim.
16. In connection with the advance of money paid by Thangaraj with
Ayyappan Chettiar and Gopal Konar, the prosecution has not collected any
further material. Therefore, the conclusion of the trial Court that the
murder was due to strong motive connected with the property, lacks
corroborative evidence to term the murder as rarest of rare case adding to
aggravating circumstances. In fact, P.W.3 Sreenivasan who is the son of
Gopal Konar, in the cross-examination, when asked whether he know about
the transaction between his father Goapal Konar and Thangaraj regarding
the land, he has feigned ignorance, thus the evidence for the motive for the
crime is weak and left uncorroborated. However, as far as the act of
committing murder by causing several cut injuries with aruval and
beheading the victim Thilagarani the deposition of eye witness P.W.1, P.W.2,
P.W.3 are cogent without any contradictions. It fully inspires the confidence
of the Court.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
17. One unique feature in this case, which is relevant both for
conviction and sentence, is the conduct of the accused soon after
commission of crime. He has not fleed from the scene of crime to hide
himself. He has gone to Village Administrative Officer along with the
severed head of his mother and voluntarily given a confession statement to
him. Thereafter, he has accompanied with the Village Administrative Officer
(P.W.5) to the police station. At the police Station, again, he has given a
confession statement to the Investigating Officer. Therefore, there is an
unassailed direct evidence for the accused causing death of Thilagarani by
attacking her with aruval and hacking her head. The extra judicial
confession to P.W.5 add corroboration and strength to the case of the
prosecution unproving the charge against the accused. The act of the
assailant to severe the head of the victim and take it along with him, is
sufficient enough to hold that the injury caused by him was with an
intention to cause death and saquarely falls within the definition of Clause
(1) of Section 300 Cr.P.C. A culpable homicide amounting to murder.
18. As far as the charge under Section 302 IPC, in the light of the
overwhelming evidence against the accused, this Court finds no other
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
reasonable view than the trial Court recorded. However, the sentence part
imposing death is not in tune with the settled principle of law qua the facts
of the case.
19. The trial Court while exercising the discretionary power of
sentencing, by citing several judgments of the Hon'ble Supreme Court and
extracting the relevant portions, has held that considering the gravity of
crime committed by the accused, motive for the crime, nature of the
offence committed and all other attendant circumstances, conclude that the
accused having murdered his mother brutally and caused 11 injuries, which
are grotesque, diabolical and dastardly the case falls under the rarest of
rare category and the accused deserves for death penalty. The learned
trial Judge has also drawn a balance sheet of the aggravating and Mitigating
circumstances.
20. In this context, we wish to record that alternate sentence of death
for the offence under Section 302 IPC has to be imposed only in the rarest
of rare case and the balance sheet drawn should be fair and enumerate all
relevant facts brought out through the witnesses during trial and also the
prior and subsequent antecedents, particularly, the propensity of the person
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
found guilty of particular crime to repeat the said crime in future and the
probability of the accused getting reformed and rehabilitated. In this case,
it is sad to note, while imposing capital punishment of death, the trial Court
knowingly or unknowingly had totally ignored all the mitigating factors. For
future aid and reference for the Sessions Judges who will be trying cases of
this nature, some of the mitigating circumstances, indicated by the Hon'ble
Supreme Court in Bachan Singh Vs. State of Punjab reported in 1980
(2) SCC 684 is extracted below:-
“206. Mitigating circumstances- In the exercise of its
discretion in the above cases, the Court shall take into account
the following circumstances:-
(1) That the offence was committed under the influence
of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or
old, he shall not be sentenced to death.
(3) The probability that the accused would not commit
criminal acts of violence as would constitute a continuing
threat to society.
(4) The probability that the accused can be reformed and
rehabilitated.
The State shall by evidence prove that the accused does
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
not satisfy the conditions (3) and (4) above.
(5)That in the facts and circumstances of the case the
accused believed that he was morally justified in committing
the offence.
(6)That the accused acted under the duress or
domination of another person.
(7) That the condition of the accused showed that he was
mentally defective and that the said defect impaired his
capacity to appreciate the criminality of his conduct.”
21. Section 354 (3) of the Code of Criminal Procedure has been
consciously drafted vesting the Courts with the discretion while imposing
sentence. Particularly, while imposing death sentence discretion must be
exercised judicially after balancing the aggravating and mitigating
circumstances of the crime. Preciously, for the said reason, Section 366 of
Cr.P.C., has been incorporated to test the exercise of the judicial discretion
by the trial Court whether erroneous, perverse or lopsided. The valuable
safeguard of the law, life and liberty of the subject, in case of capital
sentence, has to be scrutinized with atmost caution and care by the
superior Court.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
22. Bearing this mandate in mind, when the evidence in this instant
case is re-appraised, re-assessed and re-considered, we come to an
irrestible conclusion that there was an improper consideration in balancing
aggravating and mitigating circumstances by the trial Court.
23. We are forced to record the above said observation, because the
trial Court has recorded the opinion about the propensity of committing the
similar offence again and the improbability of the accused being reformed
without any material. The trial Court has erred in its conclusion that the
accused completely lacks the psyche or mindset which can be amenable for
any reformation.
24. The said observation of the trial Court under the head of
aggravating circumstances is baseless and perverse; and contrary to the
conduct of the accused after the commission of crime.
25. We are of the view that the finding of the trial Court that “the
manner of commission of offence shows that accused was having an
undaunted audacity”, is absolutely contrary to the proven conduct of the
accused, who had gone to Village Administrative Officer immediately and
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
voluntarily given confession statement. The evidence indicates he
surrendered to police, remorsefully. Therefore, while convicting the
accused for committing culpable homicide amounting to murder, death
penalty being excessive and not proportionate to the gravity of the crime, in
view of his age, social background and his commitment to his family, the
said sentence is set aside and modified to Life Imprisonment with fine of
Rs.10,000/- in default three months Simple Imprisonment.
26. In the result, the judgment of the trial Court is interfered and
modified as below:-
Offence Conviction and sentence Conviction and sentence
by the trial Court by this Court
302 of Sentenced to death and Modified.
I.P.C. be hanged by neck till his Convicted and sentenced under
death. Section 302 of I.P.C. Sentenced to
undergo Life Imprisonment and
pay a fine of Rs.10,000/-, in
default, to undergo simple
imprisonment for 3 months.
27. The period of sentence already undergone shall stand set off
under Section 428 of Cr.P.C. In respect of disposal of the material objects,
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
the trial Court order stands confirmed.
28. With the above modification, Crl.A.(MD)No.475 of 2021 is partly
allowed and the reference in R.T.(MD) No.5 of 2021 is answered
accordingly.
[S.V.N., J.] [G.J., J.]
10.12.2021
Index : Yes / No
Internet : Yes / No
am
To
1.The Sessions Judge, (Mahila Court),
Pudukkottai.
2.The Inspector of Police,
Malaiyur Police Station,
Pudukkottai District.
https://www.mhc.tn.gov.in/judis
R.T.(MD)No.5 of 2021 & Crl.A(MD)No.475 of 2021
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
am
Pre-Delivery JUDGMENT MADE IN
R.T.(MD)No.5 of 2021
and
CRL.A.(MD)No.475 of 2021
10.12.2021
https://www.mhc.tn.gov.in/judis
