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