JUDGMENT :- This appeal has been filed by Valentino Esperdio de Souza who has been found guilty by the Additional Sessions Judge at Margao under Sections 309 and 302 of the Indian Penal Code and sentenced to six months' rigorous imprisonment and life imprisonment concurrently. The charge against the accused was that at about 9 a.m. on 4-11-1965 he jumped into a well in the backyard of his parents' house together with his 15 months' old daughter Blanche with the object of committing suicide and murdering Blanche.

2. The convict is the son of PW 5 Joaquim Xavier de Souza and PW 6 Assuciana F. Lobo who are residents of Salvador do Mundo. The family is in extreme penury condition. Joaquim Xavier was once a seaman but he quitted service about 4 years ago. He had no source of income during the days of the tragic occurrence and the convict Valentino had been out of job for more than a year by then Valentino had arranged for his marriage all by himself. The relations between his parents and his wife Ana Rita Fernandes were none too happy. Ana Rita had been told by her mother-in-law, much before the present occurrence, to go to the village of her parents and she had actually left for that village (Sanguem) in sheer disgust. Valentino had tried his level best to secure some employment but had failed.

On 3-11-1965 the accused asked his mother to lend him mere eight annas but she could not find her way to oblige him. She had only one rupee on her person and she wanted to utilise that money for buying flour. The accused consequently did not take any food on that day. Neither he nor his small daughter was served breakfast on 4-11-1965. At about 9 a.m. on 4-11-1965 while the parents of the accused were busy preparing tea in the kitchen, the wife told her husband that the accused with his daughter had gone to the backside of the house. Within a matter of few minutes Assuciana heard the voice of the accused emanating from near the well. That voice being unusual, she asked her husband to go out and find what had happened. Her husband went near the well and she followed him Joaquim saw the accused sitting on the parapet of the well, his clothes dripping and his eyes red. The small child could not be noticed. Joaquim peeped into the well but could find no trace of the child. He passed on the information to his wife and expressed the doubt that the accused had drowned his daughter.

3. Belmira D'Souza PW 7, aged 13, is the adopted daughter of the parents of the accused and was putting up with them. This girl was detailed by the family for fetching the parish priest to the scene of the tragedy. The priest Joao Francisco (PW 8) rushed for the place on a cycle and on the way happened to meet Joaquim, who, it appears, had also set out from his house for bringing the priest. On reaching the destination, the priest found the accused sitting near the well but on seeing the priest the accused got up on his feet. The clothes on the person of the accused were wet. The priest put some questions to the accused but they remained unresponded. The priest then addressed the accused somewhat pungently saying why had not the accused killed himself instead of killing his daughter. The accused burst out with a cry and let forth the words, "Father, you do not know; for the last three days I had no meals. My mother is persecuting me. I asked for eight annas and she did not give me. We both want to finish, with our life".

In reply to another question by the priest the accused came out with the statement, "Father, my mother is not giving me food; she is making my life a hell." Joaquim in the meantime contacted some doctor for permission to remove the dead body of the child from the well. The doctor advised him not to adopt that course and to report the matter instead to the police. Joaquim consequently reported to the police outpost at Betim. He passed on the necessary information to the Police Constable Kashinath Rane (PW 4). This Kashinath instantly set out for the

village of occurrence along with the complainant. He saw the accused sitting on the parapet of the well with wet clothes on his person and his head hanging down. Kashinath went inside the well and with a bunch of hooks managed to take out the child. That done, Kashinath sent a message to the police Sub-Inspector Heddur of the police station Mapsa. That message was carried by Joaquim along with whom Kashinath had also sent the accused. Heddur accompanied Joaquim to the village. He prepared the inquest report in regard to the deceased child and sent the dead body to Panaji for autopsy. He also inspected the spot and recorded the statements of some witnesses.

4. The post mortem examination was done by Dr. Dias of the Medical College, Goa, at Panaji, at 11 a.m. on 5-11-1965. He did not notice any external injury on the person of the child. However, both the lungs were found enlarged with frothy liquid and the stomach full of water. He gave the expert opinion that the cause of death was drowning.

5. On completion of the investigations the accused was charge-sheeted under Ss. 309 and 302 of the Indian Penal Code. The accused enterned the plea of not guilty. His defence, gathered from the statement made under section 342 Criminal Procedure Code (hereinafter called the Code) at the conclusion of the prosecution evidence, was that he being unemployed he had to look to his parents for sustenance but his parents cold-shouldered him. He was refused eight annas asked by him from his mother a day before. He felt upset as a consequence and did not take any food on that day. His father had some talk with his mother which hurt him greatly. He was not served with any breakfast on the 4th of November, nor his daughter. In sheer desperation he picked up a few clothes and his chappals and lifted his child for the purpose of going to his godfather for seeking help out of irking situation.

While he was getting down the steps of his house close to the well he lost his mental balance and slipped down. The child tumbled out of his hold and fell into the adjoining well. He entered the well by descending the stairs inside the well and then jumped into it for fetching the child. However, since he did not know swimming he found himself unequal to the task. The child came up to the surface of the water twice but he could not catch her. He himself twice went down the water and it was by sheer coincidence that he happened to grip one step of the stairs inside the well. He having lost hope for recovering the child came out of the well. By this defence version the accused wanted to establish that the child had died by sheer accident and that he had never made an attempt on his own life. The accused did not examine any witness in defence.

6. The learned Additional Sessions Judge accepted the prosecution story on the basis of direct and circumstantial evidence as also the statement made by the accused in the committing Court and the extra judicial confession made by him to the priest Joao Francisco Fernandes. The prosecution had also relied upon the confession made by the accused before the Judicial Magistrate at Margao and which was recorded under Section 164 of the Code. However, that confession was held inadmissible because the Magistrate had not recorded in the proceedings the questions put by him to the accused and the answers given by the latter with the object of finding out that the confession which the accused wanted to make was voluntary in nature.

7. The accused argued the case personally in this Court. He appears to be an educated person and one well versed with English language. He re-emphasized the version given by him in the trial court that the child had fallen into the well by sheer accident. To reinforce that stand he urged that the steps in the backyard of his parents' house are only 1½ feet from the well and that it was consequently not improbable that after he had had a slip while descending the steps the child should have fallen in the adjoining well. However, I believe that this version is not only improbable but is completely belied by the data on the record.

8. In reply to question 33 put to him at the trial the accused said that he was so attached to his daughter that he has not been able to get over the shock occasioned by her death and that he feels an urge for cry whenever he remembers her. He added that he had not been able to get mental peace since then. If these feelings and sentiments of the accused furnish correct measure of his affection for the child, and I believe that it is so, he was expected to behave in a manner quite different from what is proved on the record at the time the child fell into the well. He was likely to raise a cry of distress, summon his parents to the spot, who were sitting only a few feet from him in the kitchen adjoining the well, and make an endeavour to enlist the aid of the neighbours. If none responded to his call he was undoubtedly bound to go inside the well in a bid to take out the child, but certainly not before the call had been made and it had fallen on deaf ears. It is not the contention of the accused that he had yelled for help. His parents and Belmira PW 7 also do not make any mention of it. Further, in such an event he was not likely to get into the well without disrobing himself. He admitted in this Court and also at the trial that he does not know swimming. It has come in evidence that there was 25 feet deep water in the well. These two facts would have acted as a deterrent against the accused plunging into the water and that too with all the clothes on. It is also odd to learn from the accused that on finding his efforts unrewarding inside the well he came out and did not contact anyone for help. Therefore the behaviour of the accused is altogether inconsistent with the version propounded by him and so that version stands at discount.

9. Not only that. We have the solemn word of the accused himself in refutation of the defence adopted at the trial. During the course of his examination under Section 342 of the Code before the Inquiring Magistrate one of the questions put to the accused was as follows :

"By the evidence produced it seems that you, on 4th November last, at about 9 a.m. at Salvador do Mundo, you jumped into a well along with a daughter 15 months old. The said child came to die suffocated and you climbed up from the well. Herewith it seems that you intended to kill the child deliberately and to suicide yourself. If it is not like this, do you want to explain the facts?"

The reply that the accused made to this question was as under :-

"I plead that I effectively jumped into the well along with my daughter, on the day, time and place already referred with the intention of committing suicide and to lake with me my daughter."

His reply requires no comment, the language being plain and the implication being too obvious. Again, the accused narrated the facts leading to the occurrence in detail while replying to the general question "Have you to say something more?" put to him by the Inquiring Magistrate. There he said that on 1st of November he asked his mother to give him just eight annas. She however not only refused to pay the money but came out with the charge that he (the accused) and his daughter were living on the food supplied by her and yet he (the accused) was asking for cash. The accused felt extremely shocked by the behaviour of his mother and went outside the house. His mother did not serve him with food for three days. On the morning of 4th the accused was in the verandah of the house along with the child. When his mother returned to the house from the church she again indulged in some talks which proved unbearable for him. He felt completely demoralised. All of a sudden he was seized with the feeling that it would be better if he were to put an end to his own life and also to the life of his daughter. Instantly he picked up the child and went to the well. He jumped straight into it along with the child.

These averments of the accused are admissible under Section 287 of the Code. That Section provides that the examination of the accused if any recorded by or before the Committing Magistrate shall be tendered by the prosecutor (at the trial) and read as evidence. It was held by the Supreme Court in the case of Hate Singh v. State of Madhya Bharat, AIR 1953 S. C. 468, that the statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that such statements have to be received in evidence and treated as evidence at the trial. The Supreme Court observed further that such statements of the accused may be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as nuch weight as matters which tell against him. In view of this interpretation of Section 287 of the Code the statement made by the accused before the Committing Magistrate can be read as a piece of evidence just as the statement of a witness made on solemn affirmation. When so read the statement not only smashes the defence of the accused raised by him for the first time at the trial but also reinforces the prosecution case to the hilt.

10. The extra judicial confession made by the accused to the priest Joao Francisco also places the matter beyond controversy. He told the priest soon after he had come out of the well that he had not taken food for three days, that his mother had been persecuting him, that she had denied him a small pittance of eight annas, that there had been exchange of hot words between him and his mother, and that he and the child "want to finish with our life". The Supreme Court has held in a recent case of Ram Singh v. State of U. P., AIR 1967 S.C. 152, that though extra-judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement should not be believed.

In view of the penitent mood in which the accused was immediately after the death of his only child, it was not surprising that he should have told the true story to his own parish priest. That story also corresponds with the evidence examined by the prosecution as also the statement made by the accused himself before the Committing Magistrate. Hence the testimony of the priest can safely be taken at face value.

11. We have the independent testimony of Joaquim Xavier PW 5, Assunciana Florina PW 6, respectively the father and the mother of the accused, and of Belmira PW 7, an adopted daughter of the parents of the accused, which cumulatively constitute sufficient evidence of the facts that the accused had made an attempt on his own life and had killed his daughter by drowning. Joaquim Xavier deposed that he and his wife were in the kitchen at about 9.30 a.m. on the date of occurrence when he was told by his wife that the accused, who was sitting earlier in the verandah of the house, had gone with his daughter to the back part of the house. Ten minutes thereafter his wife told Joaquim Xavier to go out and see what the accused was doing. Joaquim Xavier actually went near the well in his house and saw the accused sitting on the parapet thereof. The clothes on the person of the accused were wet, his eyes were red and he was in pensive mood with head bowing down. Joaquim Xavier did not find the child near the accused and since the accused appeared to him at that moment to be like a mad man he looked into the well to satisfy his doubt that the child may have been drowned therein. However, he could not see the child in the well. Joaquim Xavier returned to the house and passed on the information collected to his wife. He expressed his misgiving that the accused had drowned the child. After meeting the parish priest and one doctor in the village Joaquim Xavier left for police outpost at Betim. Assuciana deposed that when she was talking with her husband in the kitchen on the morning of the date of occurrence she heard some voice of the accused coming from near the well and she felt that it was an unusual voice. Consequently, she asked her husband to go out and see what had happened. Out of anxiety she also went out and on seeing the accused sitting on the parapet of the well and breathing with difficulty she fainted and fell down. She also affirmed that before the occurrence on 4-11-1965 the accused had requested her to pay him eight annas but she had refused to oblige him as she had only one rupee with her and she required it for purchase of flour.

PW 7 Belmira said on solemn affirmation that she has been adopted by the parents of the accused and is putting up with them at Salvador do Mundo. She said further that she was in the house on the day the daughter of the accused died and so were the parents of the accused. She noticed the accused going with his daughter Blanche towards the kitchen of the house. The statements of these three witnesses between themselves establish that on the morning of 4-11-1965 the accused suffered a rebuff at the hands of his mother whom he had asked for lending him eight annas, that at about 9.30 a.m he was noticed going towards the well in the back side of the house with the child in his arms, that about 10 minutes thereafter the mother of the accused heard some unusual voice of the accused and sent her husband to find out what the matter was, and that the mother and the father of the accused then saw him sitting on the parapet of the well.

According to the testimony of Joaquim Xavier the clothes on the person of the accused were wet and his eyes red. The mother of the accused has deposed that the accused was breathing with difficulty. It is proved from the medical evidence that there were no injuries either internal or external on the person of the deceased child. Nor is it the case of the accused that he had any injuries on his person. Hence the version of the accused about fall by slip from the stairs near the well cannot be countenanced. Therefore the direct and the circumstantial evidence coupled with the extra judicial confession made by the accused to the priest and his own statement made before the Committing Magistrate leave no scope for doubt that the accused had jumped into the well along with his daughter. This he could have done only for ending his own life and the life of the child.

12. As a result of the conclusion recorded above I affirm the findings of the trial court that the charge against the accused on both the counts is established beyond any reasonable doubt.

13. In respect of the charge under Section 302 the accused could be sentenced either to death or to imprisonment for life. The learned Addl. Sessions Judge has in exercise of his discretion imposed the lesser of the two sentences on the accused. He had the right to do so. And so, I confirm the sentence of imprisonment for life under S. 302 I.P.C. However, the sentence of six months' rigorous imprisonment under Sec. 309 appears to be excessive in the context of the circumstances proved in the case. The accused had reached the stage of utter destitution and his closest relations were not out to help him even with two square meals a day. He was denied food for three days preceding the date of occurrence and on the latter date he was not served the breakfast. His infant child was also denied food on that morning. The accused has to be pitied rather despised if in such circumstances he took the extreme step of attempting to finish his life, the most precious gift known to all living beings. Therefore, I think that the sentence of imprisonment already undergone by him under Section 309 I.P.C., and which sentence comes to three months and 10 days, counted from 7th of November 1966, the date of his conviction, would meet the ends of justice. I order accordingly.

14. My functions as a judge conclude with what I have said above. However, the circumstances in which the accused committed the offence of murder raise pathos of such magnitude that I feel duty bound to recommend his case to the Government for exercise of its prerogative of remitting substantially the sentence of life imprisonment awarded to the accused to under Section 302 I.P.C. This can be done in terms of Section 401 of the Code. The murdered person Blanche was the only child of the accused. He killed the child not out of spite nor on account of any baser human urges which are usually associated with murders. He drowned the child in the conviction that none would bring her up after he had finished his own life by committing suicide. I feel satisfied that it was love of the child and not any enmity towards her which appears to have weighed with the accused in killing her.

If the parents of the accused were not out to feed him, they were not likely to look after the child subsequent to his death. The mother of the child had exhibited callousness by going to the house of her parents without taking, or keeping, the child with her. The accused thought on the line of committing suicide because hunger and humiliation had joined hands in killing the spirit within him and in hurling a challenge at his self respect. The facts and circumstances of the case evidently are altogether unusual and un-common. The facts of the case reported in AIR 1950 Mad 592 were equally tragic and so the High Court of Madras recommended the case to the Government as a fit one for remission in sentence. The convict of that case had caused the death of four innocent children but the reason ascribed for that senseless and horrible act done by him was anger generated by hunger and which hunger none of his relations was out to relieve. The facts of the case on hand do not excite less sympathy as compared to those of Madras case. Hence I recommend this case to the Government for substantial remission in sentence under Section 401 of the Code. Hunger and the urges it generates in the afflicted persons have always been considered as constituting mitigating and extenuating circumstances for the purpose of sentence.