Madras High Court
Iswari vs State on 13 March, 2007
Bench: M.Chockalingam, P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13/03/2007 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Criminal Appeal (MD)No.357 of 2005 Iswari, W/o.Vallavan ... Appellant/Accused Vs State, Rep.by the Inspector of Police, Veerapandi Police Station, Tehni District. ... Respondent/ Crime No.163 of 2001 Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 04.02.2003, of the learned Additional Sessions Judge, Fast Track Court, Periyakulam in S.C.No.73 of 2002. !For Appellant : Mr.N.Ranjith ^For Respondent : Mr.S.P.Samuel Raj, Addl.Public Prosecutor. :J U D G M E N T
(Judgment of the Court was delivered by M.CHOCKALINGAM,J) The appellant is the sole accused in Sessions Case No.73/2002 on the file of the learned Additional Sessions Judge, Fast Track Court, Periyakulam wherein she stood charged under Section 302 and Section 302 read with Section 201 IPC and on trial, she was found guilty only under Section 302 IPC and sentenced to undergo life imprisonment and acquitted of the charge under Section 302 read with Section 201 IPC. Challenging the said judgment, the appellant has brought-forth this appeal.
2.The brief facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:
(a)P.W.1 Kannan and P.W.2 Asaimani are the brothers of the deceased.
P.W.3 Parvathi and P.W.4 Rajeswari are the mother and sister of the deceased, respectively. The deceased Vallavan is the husband of the accused. The accused was previously given in marriage with P.W.10 Rajendran and there was a customary divorce and thereafter the accused married the deceased and they got two children and they were living together in Muthuthevanpatti within the limits of the respondent police.
(b)After his marriage with the accused, the deceased was suspecting the fidelity of his wife and due to which they used to quarrel often and at times the deceased used to beat her his wife, the accused. Three days prior to the occurrence, P.W.1 went to the house of his elder brother, the deceased and at that time he saw the quarrel between the husband and wife and when he questioned his brother, the deceased complained to him about the conduct of the accused. P.W.1 also asked the accused about the quarrel, for which she replied that one day or the other she would kill his brother and thereafter P.W.1 left the house.
(c)Three days thereafter, i.e. on 11.09.2001, P.W.1 went to the house of his brother, the deceased and found the house locked and his enquiry with the neighbours did not yield any result and therefore, P.W.1 informed the same to his brother, mother and sister. Thereafter, both P.W.1 and P.W.2 went to the house of their brother. At that time, they smelt a bad odour emanating from the rubbish pile found on the opposite side of the house and immediately they went to that place and found a dead body lying inside the rubbish file and when they removed the rubbish they ascertained that it was the body of their brother. Immediately, P.W.1 went to the respondent police station and gave Ex.P-1 complaint to P.W.20, the Sub-Inspector of Police. On the strength of Ex.P-1 complaint, P.W.20 registered a case in Crime No.163/2001 under Section 302 IPC and prepared EX.P-19, the first information report and despatched the same to the Court through P.W.11 Constable.
(d)On receipt of a copy of Ex.P-19 FIR, P.W.21, the Inspector of Police, took up the investigation, proceeded to the place of occurrence and made an observation in the presence of witnesses. He caused the place where the body was found lying to be photographed through P.W.13, the photographer and M.O.10 series are the photographs and their negatives. Since the body was covered with wastes, P.W.21 gave a requisition to P.W.15, the Revenue Tahsidlar, requesting him to conduct inquest on the body. On visiting the place of occurrence, P.W.15 directed P.W.21 to conduct himself the inquest on the body and accordingly he conducted inquest in the presence of pnchayatdars and witnesses and prepared Ex.P-20, the inquest report. He also gave a requisition to P.W.16, the doctor, to conduct postmortem on the body of the deceased. P.W.16, the doctor, conducted inquest in the place where the dead body was lying and after postmortem he issued Ex.P-8 postmortem certificate. Ex.P-9 is the final opinion given by him as to the cause of death, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained by him, about 72 to 80 hours prior to the postmortem. After postmortem, M.Os.11 and 12, the personal wearing apparels of the deceased, were recovered from the dead body.
(e)Threafter, P.W.21 prepared Ex.P-21, the observation mahazar, attested by witnesses. He also prepared Ex.P-22, the rough sketch. From the place where the body was found lying, P.W.21 recovered M.O.1, the bed sheet, M.O.2, baniyan, M.O.3, the bloodstained earth, M.O.4, the sample earth, M.O.5, the saree, M.O.6, the blouse and M.O.7, the in-skirt under Ex.P-2 mahazar attested by P.W.7, the village administrator officer and another. From the house of the deceased, P.W.21 recovered M.O.8, the turmeric powder container under Ex.P-3 mahazar attested by the same witnesses. P.W.21, gave a requisition to P.W.14, the Forensic Department Scientist, to lift bloodstains found on the walls of the house of the deceased. He enquired witnesses and recorded their statements.
(f)Pending investigation, P.W.21, the investigator, arrested the accused on the same day at 5.00 p.m. in the presence of P.W.7 and another and when enquired, the accused volunteered to give a confessional statement which was recorded by P.W.21, admissible portion of it is marked as Ex.P-5, pursuant to which the accused produced M.O.9, the billhook and the same was recovered under Ex.P-6 mahazar attested by P.W.7 and another. Thereafter, P.W.21, subjected the accused to judicial custody.
(g)P.W.19 is the Magisterial Clerk. Pursuant to Ex.P-13, the requisition given by the investigator, the viscera was sent to chemical examination under Ex.P-14, the letter of the Court. Ex.P-15 is the requisition given by the investigator to the Court to send the Hyoid Bone for chemical examination and the same was sent under Ex.P-16, the letter of the court. Ex.P- 17 is the requisition given by the investigator to subject all the material objects recovered from the dead body, from the place of occurrence and from the accused pursuant to her confessional statement to chemical examination and the same were placed before the Forensic Department through Ex.P-18, the letter of the Court. Ex.P-10 is the Chemical Examiner's Report and Ex.P-11 is the Serologist's Report. Ex.P-12 is the report given by P.W.18 in respect of hyoid bone. P.W.21 the investigator, completed the investigation and filed the final report in the concerned Judicial Magistrate Court.
3.The case was committed to the Court of Session and necessary charges were framed. To substantiate the charges levelled against the accused, the prosecution marched 21 witnesses as P.Ws.1 to 21 and relied on 22 documents, marked as Exs.P-1 to P-22 as well as 12 material objects, marked as M.Os.1 to
12. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused denied them flatly as false. No defence witness was examined. The trial court heard the arguments advanced on either side, scrutinised the materials available and took the view that the prosecution has proved the charge under Section 302 IPC and found the accused guilty thereunder and sentenced her to undergo life imprisonment and acquitted the accused in respect of the charge under Section 302 read with Section 201 IPC. Hence, this appeal by the appellant challenging the conviction and sentence under Section 302 IPC.
4.Advancing his arguments on behalf of the appellants, the learned counsel for the appellant would submit that in the instant case there is no direct evidence for the prosecution and the prosecution rested its entire case on circumstantial evidence but the prosecution neither placed sufficient circumstances nor proved the same to sustain the conviction. Learned counsel would add that in the instant case, in the real sense, the prosecution had no circumstance to offer. The only circumstance available was the alleged recovery of M.O.9, the billhook, pursuant to the alleged confessional statement said to have been given by the accused and also recovery of M.Os.1 to 7, which included the personal wearing apparels of the accused from nearby place where the dead body was found lying. In the instant case, the alleged confessional statement and the recovery of material objects were nothing but an introduction in order to secure a conviction and a scrutiny of the evidence in that regard would clearly reveal that they were all nothing but an invention and introduced to shape the prosecution case and there is no iota of evidence available. In the instant case, merely on the alleged recovery, which was not free from doubts, the conviction by the trial court could not be sustained and thus the prosecution has miserably failed to prove its case. Advancing his further arguments, the learned counsel for the appellant would submit that even assuming that the prosecution has proved that it was the accused who committed the act and caused the death of her husband, the act of the accused would not attract the penal provision of murder but it was only culpable homicide not amounting to murder. According to the learned counsel, the confessional statement of the accused, which was relied on by the prosecution and accepted by the trial court, would clearly indicate that even from the time of her marriage with the deceased, the deceased was suspecting her fidelity and due to which there used to be quarrel between them and at times the deceased used to beat her and one occasion he compelled the accused and her children to commit suicide and she was under the fear that there was all possibility of herself and the children being killed by her husband and thus in that sustained provocation she has acted and caused the death of her husband. Under such circumstances, the act of the accused would not fall under the ambit of murder but only culpable homicide not amounting to murder and this has got to be considered by this Court.
5.The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.
6.The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.
7.It is not the fact in controversy that on 11.09.2001 the dead body of one Vallavan, the husband of the accused, was found lying inside a rubbish pile and the medical evidence in the form of the oral evidence given by P.W.16, the postmortem doctor and Exs.P-8 and P-9, the postmortem certificate and final opinion for the cause of the death, would clearly indicate that Vallavan died of shock and haemorrhage due to injuries sustained by him about 72 to 80 hours prior to autopsy. This fact that Vallavan died of homicidal violence was never questioned by the appellant at any stage of the proceedings and thus the prosecution was able to prove that he died of homicidal violence.
8.It is true that the prosecution had no direct evidence to prove its case that was the accused the accused who attacked her husband and caused his death. The Court is mindful of the caution made by law that in a given case where the prosecution rested its case on the circumstantial evidence, all the circumstances placed must be complete making a chain without any snap and pointing to the hypothesis that it was the accused and none else could have committed the offence. Even this test is applied, in the instant case, the Court is thoroughly satisfied that it was the accused who committed the offence. It is the admitted fact that the appellant is the wife of the deceased and they got two children and they were living together at the relevant point of time. When the deceased, the husband, was found with his wife, the accused and a homicidal violence has taken place and in which her husband was done to death, she is the only competent person to speak about what had happened to her husband, because she was the person having special knowledge. But, she has not come with any explanation as to how the death of her husband has occurred. Further, she disappeared from the place of occurrence for a few days and she was arrested on the day when the dead body was found. A report was given by P.W.1 to P.W.20, the Sub-Inspector of Police and based on which a case came to be registered, investigation was taken up by P.W.21, the investigator and the dead body was subjected to postmortem and the postmortem doctor has given his opinion that the deceased died of shock and haemorrhage due to the injuries sustained by him about 72 to 80 hours prior to autopsy.
9.Further, in the instant case, pending investigation, the accused was arrested within a short time and also pursuant to the confession statement given by her M.O.9, aruval, the weapon of crime, was recovered. Further, her bloodstained saree, blouse and in-skirt have been recovered from nearby place where the body was found dead and recovery of those material objects was not disputed by the accused. Apart from this, as could be seen from the confessional statement of the accused, following the confessional statement, M.O.9 aruval was recovered and the same was pointing to the nexus of the accused with the crime. The yet another circumstance, in the instant case, in favour of the prosecution is the scientific evidence. All the material objects recovered from the dead body, from the place where the dead body was found lying and recovered pursuant to the confessional statement of the accused were subjected to chemical analysis by the forensic department, which resulted in Ex.P-11, the Serologist's Report, where from it could be seen that the same blood group was found in the bill hook M.O.9, and the clothes worn by the accused, namely M.Os.5 to 7 and also in the clothes worn by the deceased, which tallied with the blood group of the deceased and thus the scientific evidence is also in favour of the prosecution case. All put together clearly pointing to the guilt of the accused that it was none else except the accused has committed the offence.
10.Now coming to the question of the nature of the act of accused, the Court is able to see sufficient force in the contention put-forth by the appellant's counsel. In the instant case, after the marriage, the accused and the deceased have been living together and they had two children also. Learned counsel for the appellant took the Court to the confessional statement relied on by the prosecution and accepted by the trial court also. In the instant case, from the confessional statement of the accused, it could be seen that from the time of marriage the deceased was suspecting the fidelity of his wife, the accused and due to which they used to quarrel often and the deceased was also beating her and on one occasion he asked the accused to commit suicide with children and further she was under the grip of fear that she and her children would be killed by the deceased and therefore because of the sustained provocation she acted so and murdered her husband. Under such circumstances, the act of the accused, though not attract the penal provision of murder, would fall under Section 304(i) IPC and the Court feels that imposing a punishment of ten years rigorous imprisonment would meet the ends of justice.
11.Accordingly, the conviction of the appellant/ accused under Section 302 IPC is modified into one under Section 304(i) IPC and sentenced to undergo ten years rigorous imprisonment thereunder instead of life sentence awarded under Section 302 IPC. The sentence already undergone by the appellant/accused shall be given set off.
12.With the above modification in the conviction and sentence, the appeal stands dismissed.
To:
1.The Sessions Judge, Kanyakumari District at Nagercoil.
2.The Inspector of Police, Vellichanthai Police Station, Kanyakumari District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai