CASE NO.: Appeal (crl.) 429 of 2006 PETITIONER: Ponusamy RESPONDENT: State of Tamil Nadu DATE OF JUDGMENT: 10/04/2008 BENCH: S.B. SINHA & HARJIT SINGH BEDI JUDGMENT:
J U D G M E N T
REPORTABLE
CRIMINAL APPEAL NO. 429 OF 2006
S.B. SINHA, J.
1. This appeal is directed against the judgment and order dated 23rd June,
2005 passed by a Division Bench of the High Court of Judicature at Madras
in Criminal Appeal No. 937 of 1998 whereby and whereunder an appeal
from a judgment of conviction and sentence passed by the Ist Additional
District Judge-cum-Chief Judicial Magistrate, Erode dated 12th October,
1998 in S.C. No. 93 of 1998 convicting the appellant herein for commission
of an offence under Section 302 of the Indian Penal Code as also under
Section 201 thereof and sentencing him to undergo rigorous imprisonment
for life and two years respectively, was dismissed.
2. Deceased Selvi was the wife of the appellant. She was earlier married
to one Easwaran, PW-9. Allegedly Easwaran had married one Balamani and
after divorcing her, he married the deceased. He, however, continued to
have relations with Balamani. He purported to have divorced Balamani by a
letter. The deceased was living with her mother Ramathal, PW-1. Appellant
thereafter married the deceased. He had been informed, about the fact of the
earlier marriage of the deceased. He agreed to the proposal of marriage but
wanted two acres of land. A Deed of Gift in favour of the deceased was
executed by her father. Appellant wanted the same to be registered in his
name. His request was not acceded to. He left the house of PW-1 after
three days of marriage. A year thereafter, he intended to live with the
deceased and approached Thangavel, PW-2, therefor. As the deceased also
agreed to the said proposal, they left the house of PW-1 on 5th March, 1997.
She was not seen thereafter. Allegedly in the morning of 10th March, 1997,
the appellant met PW-2 and informed him that the deceased had gone away
from his house on that date. A search for her was carried out. On the next
date, the appellant was seen at the Sevoor bus stop. Kannan Naicker, PW-10
was also present there. He asked the appellant and questioned the
deceased’s whereabouts, in response whereto he allegedly disclosed that he
had murdered her on 9th March, 1997. PW-10 allegedly became panicky.
He became sick. He then requested Arunachalam @ Mani, PW-11, to take
him to a doctor. When they returned from the doctor’s clinic, they found the
appellant in the office of the Village Administrative Officer, PW-18. He
purported to have made a confession again before PW-18 that he had
murdered Selvi before PW-18. He also had a packer of paper in his hand.
3. PW-10 then requested PW-11 to inform PW-2 about the matter. On
receiving the said information an attempt was made to lodge a First
Information Report at Sathyamangalam police station. The First
Information Report was refused to be registered thereat in the absence of any
dead body or any other evidence with regard to the murder. A search was
conducted for the dead body. On the bank of L.B.P. canal dead body was
found on 14th March, 1997 which fell within the jurisdiction of Kadathur
police station. A complaint was made before Ramasamy, Inspector of
Police, PW-13, at 10.30 a.m. on the same day, whereupon a First
Information Report was registered under Section 302 and Section 201 of the
Indian Penal Code. Investigation was taken up by PW-22, the Deputy
Superintendent of Police of Gobichettipalayam.
4. PW-1 identified the dead body on the basis of a talisman, which was
found on her hand, as also on identification of her saree. A key was found
tagged in the saree. The key was removed. On a query enquiry made by
PW-22, in regard to the lock for which the key was used, it was stated that
the lock was fitted to a trunk. The trunk was brought. The key was fitted in
the lock of the trunk. It was opened with the said key.
5. An inquest was conducted. The dead body was also subjected to
postmortem examination. In the said report it was stated :-
“Highly decomposed with maggots all over the body.
Teeth 1/3 nose, eye, mouth absent. Thorax : No fracture
ribs. Heart : Partially decomposed. Lungs :
Decomposed. Hyoid Bone : Intact. Stomach, Liver,
Spleen and Kideny : Partially liquefied with greenish
discolouration. Intestine, Bladder and Uterus : Partially
decomposed. Head : No fracture skull. Brain :
Completely liquefied.”
6. PW-18, the Village Administrative Officer, in the meantime took the
appellant to the Tahsildar, PW-19. Not only he confessed that he had
murdered his wife and thrrown the dead-body in the canal but also produced
a ‘thali chain’ , M.O. 1 and ear rings, M.O.2 belonging to the deceased.
Confessional statement of the appellant was reduced into writing. He was
thereafter produced before the Judicial Magistrate.
7. Admittedly, there was no eye witness to the occurrence.
8. The entire prosecution case is based on circumstantial evidence. The
Learned Sessions Judge in his judgment found the following circumstances
to arrive at his conclusion with regard to the guilt of the appellant. :-
1) Deceased was last seen in his company on 5th March,
1997.
2) She was not seen in anybody else’s company between 5th
March, 1997 and 10th March, 1997.
3) Appellant made an extra judicial confession not only
before PW-2 but also before PWs. 10 & 18.
4) On the basis of his confession that the dead body had
been thrown in L.B.P. canal a search for the dead body
was made and recovered.
5) Dead body was that of a female. It was identified to be
that of the deceased with reference to the manglasutra
and some other jewellery which were found on her
person. Photograph of the deceased was superimposed
on the photograph of the dead-body and it was found to
be that of her.
6) Appellant produced the belongings of the deceased
before the Village Administrative Officer, PW-18,
which admittedly belonged to her.
9. The appeal preferred thereagainst by the appellant has been dismissed
by the High Court by reason of the impugned judgment.
10. Mr. A.T.M. Rangaramanajam, learned Senior Counsel appearing on
behalf of the appellant, in support of the appeal would submit :-
1) It was improbable that the appellant had confessed his guilt
before PW-2.
2) The purported extra judicial confession by the appellant before
PW-10 should not be relied upon, having regard to the latter’s
conduct, inasmuch, he did not report thereabout to the police on
the pretext of his becoming sick in respect of which no material
was brought on record.
2) Post-mortem report clearly established that the body recovered
was in a highly decomposed stage which was, thus, not in a
position to be identified, and, in that view of the matter, the
corpus delicti having not been proved, the impugned judgment
cannot be sustained.
4) No fracture having been found on hyoid bone, it is evident that
the deceased did not die of strangulation which was the positive
case of the prosecution.
5) No explanation having been furnished for the delay in lodging
the First Information Report, the entire prosecution case is
suspicious.
67) Conduct of the prosecution witnesses and in particular that of
PW-1, PW-2 and PW-10 is such, that would lead to the
conclusion that they are not trustworthy witnesses.
7) Extra judicial confession, in any event, being a weak evidence,
it was obligatory on the part of the prosecution to lead
evidence corroborating thereto.
8) Extra judicial confession in any event being contrary to or
inconsistent with the medical report, it would not be safe to rely
thereupon.
10. Mr. R. Shunmugasundaram, learned Senior Counsel appearing on
behalf of the State, on the other hand urged :-
1) The dead body having been identified with reference to
manglasutra, key and saree, the courts below rightly held that
the dead-body was that of the deceased ‘Selvi’.
2) The jewellery items which were handed over by the appellant
himself in a packet, were identified by PW-1 when she was
afforded an opportunity to do so.
3) It is not correct to contend that PW-10, despite extra judicial
confession made before him, did not take any step in that behalf
as he had immediately sent PW-11, Mani, to inform PW-2
thereabout. It is thereafter only, that they went to the police
station.
4) Sufficient explanation had been offered by PW-1, in regard to
the delay in lodging of the First Information Report, having
regard to the fact that Sathyamangalam police station had
refused to record the First Information Report in the absence of
the dead body and/or any other record. A First Information
Report was lodged only after the dead body was seen and
identified with reference to the talisman, M.O.4; key, M.O. 5
and the silver ring which was found on her toe.
5) Thiru Devarajan, who examined himself as PW-22, and was
working as Deputy Superintendent of Police, was a witness to
the identification of the dead-body to be that of Selvi from the
ninji, “dayath” tied on the hand and from the key tied to the end
of the saree. Only at his instance, the trunk was brought and the
lock opened with the key.
6) Requisition, Ext.P.3, was made by the Superintendent of the
police for chemical test and the Chemical Text Report, Ext.P.5
categorically established the identity of the deceased.
7) Absence of fracture on the hyoid bone itself would not lead to
the conclusion that the deceased did not die of strangulation as
medical jurisprudence suggests that only in a fraction of such
cases, a fracture of hyoid bone is found.
11. The relationship of the appellant with that of the deceased is not in
dispute. That they were married and immediately thereafter started living in
the house of P-1 is also not denied or disputed. It further stands established
that PW-2 is the husband of Rukmani, another daughter of PW-1. It has also
not been disputed that the deceased was earlier married to Easwaran, PW-9.
The prosecution has also brought on record a Deed of Gift dated 25th
January, 1996 executed by the husband of PW-1 in favour of the deceased.
There is also no serious dispute that the appellant did not maintain any
relationship with the deceased for about a year. They were last seen together
on 5th March, 1997, when they travelled together from the house of PW-1.
12. Voluntary statement made by the appellant to PW-2 on 10th March,
1997 that she had been missing was found by both the courts below to be
untrue.
13. Indisputably, some delay took place in lodging the First Information
Report. Till 11th March, 1997 PW-1 or for that matter PW-2, was not sure
about the death of the deceased. Only when an extra judicial confession was
made by the appellant, an attempt was made to lodge a First Information
Report.
14. The contention of the learned counsel that the statement to the said
effect, purported to have been made, by PW-1 should not be relied upon as
no officer from the police station had been examined to establish the said
fact, cannot be accepted for more than one reason. PW1 is a rustic villager.
She is an illiterate lady. According to her, she had been turned away from
the police station on the premise that no dead body was recovered or there
being no other evidence relating to her death. No exception to such a
statement can be taken. The courts cannot be oblivious of such conduct on
the part of the police officers. Apathy on the part of the police officers to
accept complaints promptly is well known phenomena.
They were searching for the deceased earlier but without success.
Only on the disclosure statement made by the appellant before PW-10 and
the police officer at Sathyamangalam police station having refused to record
the First Information Report, they started searching for the body on the bank
of the canal. The Investigating Officer, Village Administrative officer as
also other prosecution witnesses , clearly proved the discovery of a dead
body. Identification of the dead body on the basis of the manglasutra, saree
as also the sliver ring on the toe of the deceased is not in dispute.
Significantly, a key was also recovered. PW-22, a responsible officer, with
a view to satisfy himself as regards the identity of the dead body, with
reference to the key tied at the end of the saree, asked PW-2 to bring the
trunk and found it to be of the lock put on the said trunk.
15. Attempts on the part of the prosecution to establish identity of the
dead body to be that of the deceased did not stop there. It was sent for
opinion of a Chemical Examiner. It was opined :-
” During superimposition, the following
observations were made :-
a) The anthroposcopic land mark on the fact in item 1
and those on the skull item 2 fitted fairly well.
b) The outline of the face in item 1 and the outline of
skull item 2 were found to be in fair congruence.
OPINION
The skull item 2 could very well have belonged to
the female individual seen in photograph item 1.”
The said report has been proved. Its’ veracity is not disputed before
us. We do not find any cogent reason to doubt its correctness thereof.
16. Appellant is said to have thrown the dead-body in the canal. The fact
that there was sufficient water in the canal has also been established. In a
situation of this nature, a presumption about the knowledge of the appellant
in regard to location of the dead body of ‘Selvi’ can be drawn. His
confession led to a discovery of fact which had a nexus with commission of
a crime.
17. This Court in State of Mahasrashtra vs. Suresh : (2000) 1 SCC 471
opined :-
“26. We too countenance three possibilities when an
accused points out the place where a dead body or an
incriminating material was concealed without stating that
it was conceded by himself. One is that he himself would
have concealed it. Second is that he would have seen
somebody else concealing it. And the third is that he
would have been told by another person that it was
concealed there. But if the accused declines to tell the
criminal court that his knowledge about the concealment
was on account of one of the last two possibilities the
criminal court can presume that it was concealed by the
accused himself. This is because accused is the only
person who can offer the explanation as to how else he
came to know of such concealment and if he chooses to
refrain from telling the court as to how else he came to
know of it, the presumption is a well justified course to
be adopted by the criminal court that the concealment
was made by himself. Such an interpretation is not
inconsistent with the principle embodied in Section 27 of
the Evidence Act.
18. We have to consider the factual background of the present case in the
light of the relationship between the parties. If his wife was found missing,
ordinarily, the husband would search for he. If she has died in an unnatural
situation when she was in his company, he is expected to offer an
explanation therefor. Lack of such explanation on the part of the appellant
itself would be a circumstantial evidence against him.
19. In Trimukh Maroti Kirkan vs. State of Maharashtra : (2006) 10 SCC
681, it was observed :-
“22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in
leading evidence to show that shortly before the
commission of crime they were seen together or the
offence takes placed in the dwelling home where the
husband also normally resided, it has been consistently
held that if the accused does not offer any explanation
how the wife received injuries or offers an explanation
which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of
the crime.
[See also Raj Kumar Prasad Tamarkar vs. State of Bihar and another : 2007
(1) SCALE 19].
20. It is true that the autopsy surgeon, PW-17, did not find any fracture on
the hyoid bone. Existence of such a fracture lead to a conclusive proof of
strangulation but absence thereof does not prove contra.
In Taylor’s Principles and Practice of Medical Jurisprudence,
Thirteenth Edition, pages 307-308, it is stated :-
” The hyoid bone is ‘U’ shaped and composed of
five parts : the body, two greater and two lesser horns. It
is relatively protected, lying at the root of the tongue
where the body is difficult to feel. The greater horn,
which can be felt more easily, lies behind the front part
of the strip-muscles (sternomastoid), 3 cm below the
angle of the lower jaw and 1.5 cm from the midline. The
bone ossifies from six centres, a pair for the body and
one for each horn. The greater horns are, in early life,
connected to the body by cartilage but after middle life
they are usually united by bone. The lesser horns are
situated close to the junction of the greater horns in the
body. They are connected to the body of the bone by
fibrous tissue and occasionally to the greater horns by
synovial joints which usually persist throughout life but
occasionally become ankylosed.
Our own findings suggest that although the
hardening of the bone is related to age there can be
considerable variation and elderly people sometimes
show only slight ossification.
From the above consideration of the anatomy it
will be appreciated that while injuries to the body are
unlikely, a grip high up on the neck may readily produce
fractures of the greater horns. Sometimes it would
appear that the local pressure from the thumb causes a
fracture on one side only.
While the amount of force in manual strangulation
would often appear to be greatly in excess of that
required to cause death, the application of such force, as
evidenced by extensive external and soft tissue injuries,
make it unusual to find fractures of the hyoid bone in a
person under the age of 40 years.
As stated, even in older people in which
ossification is incomplete, considerable violence may
leave this bone intact. This view is confirmed by Green.
He gives interesting figures : in 34 cases of manual
strangulation the hyoid was fractured in 12 (35%) as
compared with the classic paper of Gonzales who
reported four fractures in 24 cases. The figures in
strangulation by ligature show that the percentage of
hyoid fractures was 13. Our own figures are similar to
those of Green.”
22. In ‘Journal of Forensic Sciences’ Volume 41 under the Title
Fracture of the Hyoid Bone in Strangulation : Comparison of Fractured and
Unfractured Hyoids from Victims of Strangulation, it is stated :-
” The hyoid is the U-shaped bone of the neck that is
fractured in one-third of all homicides by strangulation.
On this basis, postmortem detection of hyoid fracture is
relevant to the diagnosis of strangulation. However, since
many cases lack a hyoid fracture, the absence of this
finding does not exclude strangulation as a cause of
death. The reasons why some hyoids fracture and others
do not may relate to the nature and magnitude of force
applied to the neck, age of the victim, nature of the
instrument (ligature or hands) used to strangle, and
intrinsic anatomic features of the hyoid bone. We
compared the case profiles and xeroradiographic
appearance of the hyoids of 20 victims of homicidal
strangulation with and without hyoid fracture (n = 10,
each). The fractured hyoids occurred in older victims of
strangulation (39 1 14 years) when compared to the
victims with unfractured hyoids (30 1 10 years). The age-
dependency of hyoid fracture correlated with the degree
of ossification or fusion of the hyoid synchondroses. The
hyoid was fused in older victims of strangulation (41 1
12 years) whereas the unfused hyoids were found in the
younger victims (28 1 10 years). In addition, the hyoid
bone was ossified or fused in 70% of all fractured hyoids,
but, only 30% of the unfractured hyoids were fused. The
shape of the hyoid bone was also found to differentiate
fractured and unfractured hyoids. Fractured byoids were
longer in the anterior-posterior plane and were more
steeply sloping when compared with unfractured hyoids.
These data indicate that hyoids of strangulation victims,
with and without fracture, are distinguished by various
indices of shape and rigidity. On this basis, it may be
possible to explain why some victims of strangulation do
not have fractured hyoid bones.”
23. Mr. Rangaramanajam, however, relied upon Modi’s ‘Medical
Jurisprudence and Toxicology’, Twenty-Third Edition at page 584 wherein a
difference between hanging and strangulation has been stated. Our attention
in this connection has been drawn to point No.12 which reads as under :-
Hanging
Strangulation
Fracture of the larynx and
trachea Very rare and that
too in judicial hanging.
Fracture of the larynx and
trachea Often found also
hyoid bone.
24. A bare perusal of the opinion of the learned Author by itself does not
lead to the conclusion that fracture of hyoid bone, is a must in all the cases.
25. We must also take into consideration the fact that the dead-body was
decomposed with maggots all over it. Other marks of strangulation which
could have been found were not to be found in this case. The dead body was
found after a few days. We are, therefore, of the opinion that medical
evidence does not negate the prosecution case.
26. There cannot be any doubt that extra judicial confession is evidence of
weaks nature as has been held in Kuldip Singh and another vs. State of
Punjab : (2002) 6 SCC 757
However, it must also be noticed that therein, not only the confession
made by the appellant was found to be unbelievable, even the recovery of
the dead body, pursuant to the disclosure statement made, was also found to
be so. There was no other evidence on record on the basis of which the
conviction of the appellant could be sustained.
In this case, however, not only an extra judicial confession was made
by the appellant before PW-10, the same was also made before PW-11. The
jewellery which had been put on by the deceased was produced by the
appellant. Only upon the disclosure made by the appellant that the dead
body had been thrown in the canal, a search was made and it was found.
The dead body was also identified to be that of the deceased.
27. In Vinayak Shivajirao Pol vs. State of Mahasrashtra : (1998) 2 SCC
233 this Court opined :-
“10. There is no ambiguity in the above statement. It
shows that the appellant killed his wife. Both the Courts
have found that the statement was made voluntarily by
the appellant. The sequence of events shows that at the
time when the appellant made a confession, neither he
nor the military authorities had any knowledge of the
recovery of the headless trunk of the appellant’s wife.
The military authorities were in no way biased or
inimical to the appellant. Nothing is brought out in the
evidence in respect of the military officers which may
indicate that they had a motive for attributing an
untruthful statement to the appellant. The statement has
been proved by one of the officers to whom it was made.
The said officer has been examined as PW 32. A perusal
of the evidence shows that the vague plea raised by the
appellant that the statement was obtained from him on
inducement and promise is not true. In such
circumstances it is open to the Court to rest its conclusion
on the basis of such statement and no corroboration is
necessary.”
28. We have been taken through the evidence of PW-10 and PW-18. We
have no reason to differ with the findings of the learned trial Judge as also
the High Court that the extra judicial confession was voluntary or truthful.
We, therefore, are of the opinion that no case has been made out for
interference with the impugned judgment. The appeal fails and is dismissed
accordingly.