{"id":34953,"date":"2007-03-13T00:00:00","date_gmt":"2007-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/iswari-vs-state-on-13-march-2007"},"modified":"2019-03-29T20:29:38","modified_gmt":"2019-03-29T14:59:38","slug":"iswari-vs-state-on-13-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/iswari-vs-state-on-13-march-2007","title":{"rendered":"Iswari vs State on 13 March, 2007"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Iswari vs State on 13 March, 2007<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 13\/03\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nand\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nCriminal Appeal (MD)No.357 of 2005\n\n\nIswari,\nW\/o.Vallavan\t\t\t... Appellant\/Accused\t\n\t\t\t\t\t\t\t\t\nVs\n\nState,\nRep.by the Inspector of Police,\nVeerapandi Police Station,\nTehni District.\t\t\t... Respondent\/\nCrime No.163 of 2001\t\t    Complainant\n\n\n\t \tAppeal under Section 374 of the Code of Criminal Procedure against\nthe judgment, dated 04.02.2003, of the learned Additional Sessions Judge, Fast\nTrack Court, Periyakulam in S.C.No.73 of 2002.\n\n\n!For Appellant\t \t:  Mr.N.Ranjith\n\t\t\t\t\t\t\n^For Respondent\t\t:  Mr.S.P.Samuel Raj,\n\t\t\t   Addl.Public Prosecutor.\n\n\n:J U D G M E N T\n<\/pre>\n<p>(Judgment of the Court was delivered by M.CHOCKALINGAM,J)<\/p>\n<p>\t\t\tThe appellant is the sole accused in Sessions Case No.73\/2002<br \/>\non the file of the learned Additional Sessions Judge, Fast Track Court,<br \/>\nPeriyakulam wherein she stood charged  under Section 302 and Section 302 read<br \/>\nwith Section 201 IPC and on trial, she was found guilty only under Section 302<br \/>\nIPC and sentenced to undergo life imprisonment and acquitted of the charge under<br \/>\nSection 302 read with Section 201 IPC.  Challenging the said judgment, the<br \/>\nappellant has brought-forth this appeal.\n<\/p>\n<p>\t\t2.The brief facts necessary, sans unnecessary facts, for the<br \/>\ndisposal of the appeal can be stated thus:\n<\/p>\n<p>\t\t(a)P.W.1 Kannan and P.W.2 Asaimani are the brothers of the deceased.<br \/>\nP.W.3 Parvathi and P.W.4 Rajeswari are the mother and sister of the deceased,<br \/>\nrespectively.  The deceased Vallavan is the husband of the accused.  The accused<br \/>\nwas previously given in marriage with P.W.10 Rajendran and there was a customary<br \/>\ndivorce and thereafter the accused married the deceased and they got two<br \/>\nchildren and they were living together in Muthuthevanpatti within the limits of<br \/>\nthe respondent police.\n<\/p>\n<p>\t\t(b)After his marriage with the accused, the deceased was suspecting<br \/>\nthe fidelity of his wife and due to which they used to quarrel often and at<br \/>\ntimes the deceased used to beat her his wife, the accused. Three days prior to<br \/>\nthe occurrence, P.W.1 went to the house of his elder brother, the deceased and<br \/>\nat that time he saw the quarrel between the husband and wife and when he<br \/>\nquestioned his brother, the deceased complained to him about the conduct of the<br \/>\naccused.  P.W.1 also asked the accused about the quarrel, for which she replied<br \/>\nthat one day or the other she would kill his brother and thereafter P.W.1 left<br \/>\nthe house.\n<\/p>\n<p>\t\t(c)Three days thereafter, i.e. on 11.09.2001, P.W.1 went to the<br \/>\nhouse of his brother, the deceased and found the house locked and his enquiry<br \/>\nwith the neighbours did not yield any result and  therefore, P.W.1 informed the<br \/>\nsame to his brother, mother and sister.  Thereafter, both P.W.1 and P.W.2 went<br \/>\nto the house of  their brother.  At that time, they smelt a bad odour emanating<br \/>\nfrom the rubbish pile found on the opposite side of the house and immediately<br \/>\nthey went to that place and found a dead body lying inside the rubbish file and<br \/>\nwhen they removed the rubbish they ascertained that it was the body of their<br \/>\nbrother.  Immediately, P.W.1 went to the respondent police station and gave<br \/>\nEx.P-1 complaint to P.W.20, the Sub-Inspector of Police.  On the strength of<br \/>\nEx.P-1 complaint, P.W.20 registered a case in Crime No.163\/2001 under Section<br \/>\n302 IPC  and prepared EX.P-19, the first information report and despatched the<br \/>\nsame to the Court through P.W.11 Constable.\n<\/p>\n<p>\t\t(d)On receipt of a copy of Ex.P-19 FIR, P.W.21, the Inspector of<br \/>\nPolice, took up the investigation, proceeded to the place of occurrence and made<br \/>\nan observation in the presence of witnesses.  He caused the place where the body<br \/>\nwas found lying to be photographed through P.W.13, the photographer and M.O.10<br \/>\nseries are the photographs and their negatives.  Since the body was covered with<br \/>\nwastes, P.W.21 gave a requisition to P.W.15, the Revenue Tahsidlar, requesting<br \/>\nhim to conduct inquest on the body.  On visiting the place of occurrence, P.W.15<br \/>\ndirected P.W.21 to conduct himself the inquest on the body and accordingly he<br \/>\nconducted inquest in the presence of pnchayatdars and witnesses and prepared<br \/>\nEx.P-20, the inquest report.  He also gave a requisition to  P.W.16, the doctor,<br \/>\nto conduct postmortem on the body of the deceased.  P.W.16, the doctor,<br \/>\nconducted inquest in the place where the dead body was lying and after<br \/>\npostmortem he issued Ex.P-8 postmortem certificate.  Ex.P-9 is the final opinion<br \/>\ngiven by him as to the cause of death, wherein he has opined that the deceased<br \/>\nwould appear to have died of shock and haemorrhage due to injuries sustained by<br \/>\nhim, about 72 to 80 hours prior to the postmortem. After postmortem, M.Os.11 and<br \/>\n12, the personal wearing apparels of the deceased, were recovered from the dead<br \/>\nbody.\n<\/p>\n<p>\t\t(e)Threafter, P.W.21 prepared  Ex.P-21, the observation mahazar,<br \/>\nattested by witnesses.  He also prepared Ex.P-22, the rough sketch.  From the<br \/>\nplace where the body was found lying, P.W.21 recovered M.O.1, the bed sheet,<br \/>\nM.O.2, baniyan, M.O.3, the bloodstained earth, M.O.4, the sample earth, M.O.5,<br \/>\nthe  saree, M.O.6, the blouse and M.O.7, the in-skirt under Ex.P-2 mahazar<br \/>\nattested by P.W.7, the village administrator officer and another.  From the<br \/>\nhouse of the deceased, P.W.21 recovered M.O.8, the turmeric powder container<br \/>\nunder Ex.P-3 mahazar attested by the same witnesses.  P.W.21, gave a requisition<br \/>\nto  P.W.14, the Forensic Department Scientist, to lift bloodstains  found on the<br \/>\nwalls of the house of the deceased.   He enquired witnesses and recorded their<br \/>\nstatements.\n<\/p>\n<p>\t\t (f)Pending investigation, P.W.21, the investigator, arrested the<br \/>\naccused on the same day at 5.00 p.m. in the presence of P.W.7 and another and<br \/>\nwhen  enquired, the accused volunteered to give a confessional statement which<br \/>\nwas recorded by P.W.21, admissible portion of it is marked as Ex.P-5, pursuant<br \/>\nto which the accused produced M.O.9, the billhook and the same was recovered<br \/>\nunder Ex.P-6 mahazar attested by P.W.7 and another.  Thereafter, P.W.21,<br \/>\nsubjected the accused to judicial custody.\n<\/p>\n<p>\t\t(g)P.W.19 is the Magisterial Clerk.  Pursuant to   Ex.P-13, the<br \/>\nrequisition given by the investigator, the viscera was sent to chemical<br \/>\nexamination under Ex.P-14, the letter of the Court.  Ex.P-15 is the requisition<br \/>\ngiven by the investigator to the Court to send the Hyoid Bone for chemical<br \/>\nexamination and the same was sent under Ex.P-16, the letter of the court.  Ex.P-<br \/>\n17 is the requisition given by the investigator to subject all the material<br \/>\nobjects  recovered from the dead body, from the place of occurrence and from the<br \/>\naccused pursuant to her confessional statement to chemical examination and the<br \/>\nsame were placed before the Forensic Department through Ex.P-18, the letter of<br \/>\nthe Court.  Ex.P-10 is the Chemical Examiner&#8217;s Report and Ex.P-11 is the<br \/>\nSerologist&#8217;s Report.  Ex.P-12 is the report  given by P.W.18 in respect of hyoid<br \/>\nbone.  P.W.21  the investigator, completed the investigation and filed the final<br \/>\nreport in the concerned Judicial Magistrate Court.\n<\/p>\n<p>\t\t3.The case was committed to the Court of Session and necessary<br \/>\ncharges were framed. To substantiate the charges levelled against the accused,<br \/>\nthe prosecution marched 21 witnesses as P.Ws.1 to 21 and relied on 22 documents,<br \/>\nmarked as Exs.P-1 to P-22 as well as 12  material objects, marked as M.Os.1 to\n<\/p>\n<p>12.  On completion of the evidence on the side of the prosecution, the accused<br \/>\nwas questioned under Section 313 of the Code of Criminal Procedure as to the<br \/>\nincriminating circumstances found in the evidence of the prosecution witnesses.<br \/>\nThe  accused    denied   them  flatly as  false.  No defence witness was<br \/>\nexamined.  The trial court heard the arguments advanced on either side,<br \/>\nscrutinised the materials available and took the view that the prosecution has<br \/>\nproved the charge under Section 302 IPC and found the accused guilty thereunder<br \/>\nand sentenced her to undergo life imprisonment and acquitted the accused in<br \/>\nrespect of the charge under Section 302 read with Section 201 IPC.  Hence, this<br \/>\nappeal by the appellant challenging the conviction and sentence under Section<br \/>\n302 IPC.\n<\/p>\n<p>\t\t4.Advancing his arguments on behalf of the appellants, the learned<br \/>\ncounsel for the appellant would submit that in the instant case there is no<br \/>\ndirect evidence for the prosecution and the prosecution rested its entire case<br \/>\non circumstantial evidence but the prosecution neither placed sufficient<br \/>\ncircumstances nor proved the same to sustain the conviction.  Learned counsel<br \/>\nwould add that in the instant case, in the real sense, the prosecution had no<br \/>\ncircumstance to offer.  The only circumstance available was the alleged recovery<br \/>\nof M.O.9, the billhook, pursuant to the alleged confessional statement said to<br \/>\nhave been given by the accused  and also recovery of M.Os.1 to 7, which included<br \/>\nthe personal wearing apparels of the accused from nearby place where the dead<br \/>\nbody was found lying.  In the instant case, the alleged confessional statement<br \/>\nand the recovery of material objects were nothing but an introduction in order<br \/>\nto secure a conviction and a scrutiny of the evidence in that regard would<br \/>\nclearly reveal that they were all nothing but an invention and introduced to<br \/>\nshape the prosecution case and there is no iota of evidence available.  In the<br \/>\ninstant case, merely on the alleged recovery, which was not free from doubts,<br \/>\nthe conviction by the trial court could not be sustained and thus the<br \/>\nprosecution has miserably failed to prove its case.  Advancing his further<br \/>\narguments, the learned counsel for the appellant would submit that even assuming<br \/>\nthat the prosecution has proved that it was the accused who committed the act<br \/>\nand caused the death of her husband, the act of the  accused would not attract<br \/>\nthe penal provision of murder but it was only culpable homicide not amounting to<br \/>\nmurder.  According to the learned counsel, the confessional statement of the<br \/>\naccused, which was relied on by the prosecution and accepted by the trial court,<br \/>\nwould clearly indicate that  even from the time of her marriage with the<br \/>\ndeceased, the deceased was suspecting her fidelity and due to which there used<br \/>\nto be quarrel between them and at times the deceased used to beat her and one<br \/>\noccasion he compelled the accused and her children to commit suicide and she was<br \/>\nunder the fear that there was all possibility of herself and the children being<br \/>\nkilled by her husband and thus in that sustained provocation she has acted and<br \/>\ncaused the death of her husband.  Under such circumstances, the act of the<br \/>\naccused would not fall under the ambit of murder but only culpable homicide not<br \/>\namounting to murder and this has got to be considered by this Court.\n<\/p>\n<p>\t\t5.The Court heard the learned Additional Public Prosecutor appearing<br \/>\nfor the State on the above contentions.\n<\/p>\n<p>\t\t6.The Court paid its anxious consideration to the submissions made<br \/>\non either side and also made a thorough and careful scrutiny of the available<br \/>\nmaterials.\n<\/p>\n<p>\t\t7.It is not the fact in controversy that on 11.09.2001 the dead body<br \/>\nof one Vallavan, the husband of the accused, was found lying inside a rubbish<br \/>\npile and the medical evidence in the form of the oral evidence given by P.W.16,<br \/>\nthe postmortem doctor and Exs.P-8 and P-9, the postmortem certificate and final<br \/>\nopinion for the cause of the death, would clearly indicate that Vallavan died of<br \/>\nshock and haemorrhage due to injuries sustained by him about 72 to 80 hours<br \/>\nprior to autopsy.  This fact that Vallavan died of homicidal violence was never<br \/>\nquestioned by the appellant at any stage of the proceedings and thus the<br \/>\nprosecution was able to prove that he died of homicidal violence.\n<\/p>\n<p>\t\t8.It is true that the prosecution had no direct evidence to prove<br \/>\nits case that was the accused the accused who attacked her husband and caused<br \/>\nhis death.  The Court is mindful of the caution made by law that in a given case<br \/>\nwhere the prosecution rested its case on the circumstantial evidence, all the<br \/>\ncircumstances placed must be complete making a chain without any snap and<br \/>\npointing to the hypothesis that it was the accused and none else could have<br \/>\ncommitted the offence.  Even this test is applied, in the instant case, the<br \/>\nCourt is thoroughly satisfied that it was the accused who committed the offence.<br \/>\nIt is the admitted fact that the appellant is the wife of the deceased and they<br \/>\ngot two children and they were living together at the relevant point of time.<br \/>\nWhen the deceased, the husband, was found with his wife, the accused and a<br \/>\nhomicidal violence has taken place and in which her husband was done to death,<br \/>\nshe is the only competent person to speak about what had happened to her<br \/>\nhusband, because she was the person having special knowledge.  But, she has not<br \/>\ncome with any explanation as to how the death of her husband has occurred.<br \/>\nFurther, she disappeared from the place of occurrence for a few days and she was<br \/>\narrested on the day when the dead body was found.  A report was given by P.W.1<br \/>\nto P.W.20, the Sub-Inspector of Police and based on which a case came to be<br \/>\nregistered, investigation was taken up by P.W.21, the investigator and the dead<br \/>\nbody was subjected to postmortem and the postmortem doctor has given his opinion<br \/>\nthat the deceased died of shock and haemorrhage due to the injuries sustained by<br \/>\nhim about 72 to 80 hours prior to autopsy.\n<\/p>\n<p>\t\t9.Further, in the instant case, pending investigation, the accused<br \/>\nwas arrested within a short time and also pursuant to the confession statement<br \/>\ngiven by her M.O.9, aruval, the weapon of crime, was recovered.  Further, her<br \/>\nbloodstained saree, blouse and in-skirt have been recovered from nearby place<br \/>\nwhere the body was found dead and recovery of those material objects was not<br \/>\ndisputed by the accused.  Apart from this, as could be seen from the<br \/>\nconfessional statement of the accused, following the confessional statement,<br \/>\nM.O.9 aruval  was recovered and the same was pointing to the nexus of the<br \/>\naccused with the crime.  The yet another circumstance, in the instant case, in<br \/>\nfavour of the prosecution is the scientific evidence.  All the material objects<br \/>\nrecovered from the dead body, from the place where the dead body was found lying<br \/>\nand recovered pursuant to the confessional statement of the accused were<br \/>\nsubjected to chemical analysis by the forensic department, which resulted in<br \/>\nEx.P-11, the Serologist&#8217;s Report, where from it could be seen that the same<br \/>\nblood group was found in the bill hook M.O.9, and the clothes worn by the<br \/>\naccused, namely M.Os.5 to 7 and also in the clothes worn by the deceased, which<br \/>\ntallied with the blood group of the deceased and thus the scientific evidence is<br \/>\nalso in favour of the prosecution case.  All put together clearly pointing to<br \/>\nthe guilt of the accused that it was none else except the accused has committed<br \/>\nthe offence.\n<\/p>\n<p>\t\t10.Now coming to the question of the nature of the act of accused,<br \/>\nthe Court is able to see sufficient force in the contention put-forth by the<br \/>\nappellant&#8217;s counsel.  In the instant case, after the marriage, the accused and<br \/>\nthe deceased have been living together and they had two children also.  Learned<br \/>\ncounsel for the appellant took the Court to the confessional statement relied on<br \/>\nby the prosecution and accepted by the trial court also.  In the instant case,<br \/>\nfrom the confessional statement of the accused, it could be seen that from the<br \/>\ntime of marriage the deceased was suspecting the fidelity of his wife, the<br \/>\naccused and due to which they used to quarrel often and the deceased was also<br \/>\nbeating her and on one occasion he asked the accused to commit suicide with<br \/>\nchildren and further she was under the grip of fear that she and her children<br \/>\nwould be killed by the deceased and therefore because of the sustained<br \/>\nprovocation she acted so and murdered her husband.  Under such circumstances,<br \/>\nthe act of the accused, though not attract the penal provision of murder, would<br \/>\nfall under Section 304(i) IPC and the Court feels that imposing a punishment of<br \/>\nten years rigorous imprisonment would meet the ends of justice.\n<\/p>\n<p>\t\t11.Accordingly, the conviction of the appellant\/ accused under<br \/>\nSection 302 IPC is modified into one under Section 304(i) IPC and sentenced to<br \/>\nundergo ten years rigorous imprisonment thereunder instead of life sentence<br \/>\nawarded under Section 302 IPC.  The sentence already undergone by the<br \/>\nappellant\/accused shall be given set off.\n<\/p>\n<p>\t\t12.With the above modification in the conviction and sentence, the<br \/>\nappeal stands dismissed.\n<\/p>\n<p>To:\n<\/p>\n<p>1.The Sessions Judge,<br \/>\n  Kanyakumari District at<br \/>\n  Nagercoil.\n<\/p>\n<p>2.The Inspector of Police,<br \/>\n  Vellichanthai Police Station,<br \/>\n  Kanyakumari District.\n<\/p>\n<p>3.The Additional Public Prosecutor,<br \/>\n  Madurai Bench of Madras High Court,<br \/>\n  Madurai<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Iswari vs State on 13 March, 2007 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 &#8230; Appellant\/Accused Vs State, Rep.by the Inspector of Police, Veerapandi Police Station, Tehni District. &#8230; Respondent\/ Crime No.163 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-34953","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Iswari vs State on 13 March, 2007 - Free Judgements of Supreme Court &amp; 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