Moorthy Vs. State of Tamil Nadu - Court Judgment

Excerpt:
- order 22, rules 4(4), 3 & 10-a:[tarun chatterjee & harjit singh bedi, jj] exemption from necessity of substituting l.rs. of defendant held, if exemption, which is provided under order 22, rule 4(4) is obtained from the court before the delivery of the judgment, in that case, it would be open to the court to exempt the plaintiff from bringing on record the heirs and legal representatives of the defendant even if, the defendant had died during the pendency of the suit as if the judgment was pronounced by treating that the defendant was alive notwithstanding the death of such defendant and shall have the same force and effect as if it was pronounced before the death had taken place. the court is empowered to exempt a plaintiff from the necessity of substituting the heirs and legal representative of any such defendant who has failed to file a written statement or who, having filed it, had failed to appear and contest the suit at the time of hearing of the same, but such an exemption can only be granted before the judgment is pronounced and in that case only, it can be taken against the said defendant notwithstanding the death of such defendant and such a decree shall have the same force and effect as it was pronounced before the death had taken place. where, admittedly, exemption was obtained after the judgment was pronounced, the provision of order 22, rule 4(4) of the c.p.c. would not be attracted. merely because there is failure to intimate the knowledge of the death of the defendant to the court as well as to the plaintiff, it cannot be said that the court is correct in law to grant exemption to the plaintiff from bringing on record the heirs and legal representatives of the defendant after the decree was passed. [elisa & ors v a. doss, air 1972 mad 159, approved. zahirul islam v mohd. usman & ors. 2003 (1) scc 476 disitinguished. t. gnanavel v t.s. kanagaraj & anr. 2007 (6) mad lj 597; air 2007 noc 2525 (mad), affirmed]. - 2. at the preliminary hearing we were satisfied that the appellant was rightly convicted as mentioned earlier. she was united with the doctor through love marriage, but the husband later took another wife and got 3 children from her.1. the appellant was convicted by the trial court for double murder of a woman, jayasambal by name and her son vijay anand and was sentenced to death. he was further convicted under section 307, i.p.c. for attempting to kill vijay anand's sister kavitha priyadarsini and for house trespass in order to commit the aforesaid offences, and was sentenced to life imprisonment under each of the two counts. his appeal before the madras high court was dismissed and the sentence of death confirmed. the present special leave petition was filed against this judgment.2. at the preliminary hearing we were satisfied that the appellant was rightly convicted as mentioned earlier. we, however, directed notice to be issued on the question of sentence. accordingly, limited special leave is granted.3. according to the case of the prosecution, dr. manickasamy (p.w. 1), the husband of the deceased jayasambal and father of deceased vijay anand, was a doctor working in the government hospital at sadars and the appellant as a leprosy inspector under him. the doctor had taken a second wife whom he was keeping in another house with their 3 children. the appellant developed close association with the doctor's family and became intimate with jayasambal. the daughter kavitha priyadarsini (p.w. 2), one day in 1984, found to her shock, her mother jayasambal and the appellant in a compromising position, and raised a stiff protest with her mother. jayasambal attempted to justify her romance on the ground that the doctor p.w. 1 was also having two women in his life. when kavitha threatened that she would report the matter to her father, she (jayasambal) relented and agreed to terminate the illicit relationship on which kavitha promised silence. thus forced by her daughter, jayasambal attempted to avoid the company of the appellant and to repel his advances. in the meantime the family had changed its residence and the younger sister of jayasambal joined them and started living with them. she was examined in the case as p.w. 3.4. on 20.7.1985 the appellant went to a late night cinema show with his friend p.w. 5. the film contained murder scenes of four women. when the appellant came out of the cinema hall after midnight he told his friend that he would take revenge for the betrayal by a lady. he did not give any detail. p.w. 5 stated at the trial that after dropping him at the dispensary, where he lived, the appellant left by a bicycle; and he learnt the next morning about the death of jayasambal.5. according to the further prosecution story the appellant knocked the door of p.w. 1 soon thereafter. the doctor came out of his house and the appellant suddenly rushed into his bed room, locked the door from inside and attacked jayasambal with a knife. the boy vijay anand aged about 12 years, got up and attempted to intervene and was killed. his elder sister kavitha (p.w. 2) also became a victim and suffered grievous injury. the doctor, p.w. 1, and jayasambal's younger sister (p.w. 3) raised shouts which attracted p.w. 16, a police inspector living in the neighbourhood. the police inspector saw the accused through the window with a knife in his hand and ordered him to stop and to open the door. the appellant obeyed.6. both the trial court and the high court, on appeal, closely examined the evidence and came to the conclusion that the prosecution story was correct. a plea of insanity under section 84, i.p.c. taken on behalf of the accused was rejected. we have examined the evidence and the circumstances and are in agreement with the view of the high court.7. however, the question is whether the courts below were right in imposing death penalty on the appellant or whether the appropriate sentence would be imprisonment for life. prima facie the case appears to be a very serious one where two persons were killed and a third one seriously injured. the death of a 12 year boy trying to save his mother and the serious injury to his elder sister leaves one shocked. mr. lalit, the learned counsel for the appellant contended that although the appellant was not in such a mental state so as to attract section 84, i.p.c., he was certainly so agitated on account of circumstances beyond his control that he should be spared from the extreme penalty of death. he relied upon the decision in srirangan v. state of tamil nadu, : 1978 crilj186 wherein a lenient view was taken in favour of the appellant, a young toddy tapper who while returning after his work 'tense in state', was provoked and 'went into tantrums and inflicted triple killings.'8. we have closely examined the circumstances in which the tragic event took place. the deceased jayasambal at the time of murder was about 35 years old with a teen-aged daughter and a 12 year old son, and the appellant was in his late 20s. she was united with the doctor through love marriage, but the husband later took another wife and got 3 children from her. the appellant was employed in the hospital where the doctor p.w. 1 was posted. in this background the unfortunate illicit relationship developed between the deceased and the appellant when the latter was in his mid 20s. the deceased was an elderly lady with two children who took a defiant attitude, defending her conduct when she was first confronted by her own daughter, which suggests that the unfortunate relationship had developed with her encouragement. when suddenly spurned by his partner, the appellant must have experienced the disappointment of a discarded lover. we do not suggest that the erring wife should not have corrected herself nor can the persistence of the appellant in the situation be appreciated, but we are trying to analyse his psychology. his mental agitation was further fuelled by the movie, showing murder after murder. the vicious effect of films picturizing violence in detail on impressionable minds has been subject of serious concern for some time now, but unfortunately no effective step has been taken so far to curb the growing tendency of a section of the film industry to cash on human weakness. and when this upsets a youngman, already vulnerably disturbed, the society cannot be completely absolved from sharing the responsibility of the resulting tragedy. proceeding further with the facts in the present case, we find that when commanded by p.w. 16, the appellant stopped immediately, as a result of which the life of kavitha was saved, opened the door, came out of the room and did not attempt to escape.9. considering the above circumstances appearing from the prosecution evidence, we are of the view that the sentence of death passed against the appellant under section 302, indian penal code, should be converted to imprisonment for life. let that be done and let all the sentences of imprisonment run concurrently.