1. The appellant has been convicted by the learned Additional Sessions Judge of Coimbatore for the murder of her own two children, a little girl aged 5 and a little boy aged 2 on the 17th December, 1939. The evidence against the appellant consisted mainly of confessions of her own said to have been made to her aunt (P.W. 10) and to an acquaintance (P.W. 1, Rama Boyan) and also to the Village Munsif of Pattaramangalam, P.W. 12. The appellant according to these witnesses admitted that she had thrown her children into a well and said that she had jumped into the well herself but had afterwards, apparently repenting of her intention to take her own life, managed to get out. She said that the reason why she had decided to take her children's life and her own was that she had been very harshly treated by her husband and was living a life of the utmost misery. The learned Additional Sessions Judge has accepted these confessions of the appellant and has stated that in his opinion this was a fit case for awarding as lenient a sentence as possible but, strangely enough, he goes on to say that, having found the accused guilty of murder, he has no option but to award her the extreme penalty under law. This is of course quite incorrect. The law gives the Sessions Judge the option of sentencing a person convicted of murder either to death or to transportation for life. Where there are extenuating circumstances as in this case, it is the duty of the Sessions Judge to award the lesser sentence and not to pass the sentence of death. We agree entirely with the reasoning of the learned Additional Sessions Judge. Since the only evidence that the appellant took the lives of her children is derived from her own confessions, it is only fair to take into account also the reasons which she alleged for taking such a terrible step. Her husband was examined as P.W. 5 and he said that his wife had not been right in the head for some years before, but it must be borne in mind that according to the woman herself it was her husband's ill-treatment that drove her to take the lives of her children. There was no evidence of insanity such as would take away the criminality of the act; that is to say, there is no evidence that the woman was incapable by reason of unsoundness of mind of understanding what she was doing or the consequences of her act. The conviction for murder is correct and is confirmed. The sentence of death is in this case wrong. We set it aside and substitute a sentence of transportation for life.
2. The learned Additional Sessions Judge has made a separate recommendation to the Government to reduce the punishment imposed upon this appellant to a sentence of three years' rigorous imprisonment. The letter of the learned Additional Sessions Judge has already been forwarded to the Government and they will take such action as they deem fit in the exercise of their prerogative. We do not associate ourselves with the express recommendation that the sentence be reduced to three years' rigorous imprisonment but we are in agreement with the learned Sessions Judge that the sentence of transportation for life is excessive in the circumstances of this case.