IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.08.2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C.No.12 of 2008 Duraisamy ... Petitioner Versus 1. Gnanasekaran 2. State represented by The Deputy Superintendent of Police District Crime Branch, Erode. (Crime No.391/2006) ... Respondents Criminal revision filed under Section 397 and 401 Cr.P.C., against the Judgment dated 20.09.2007 passed in S.C.No.68 of 2007, on the file of the I Additional Sessions Judge, Erode, acquitting the first respondent for an offence under Section 498-A, 302, 201 and 203 of IPC. For Petitioner : Mr.S.Shankar for Mr.C.Ramkumar For Respondent : Mr.A.K.Kumarasamy for R.1. Mr.V.R.Balasubramaniam Additional Public Prosecutor for R.2 ORDER
The first respondent herein was acquitted by the learned I Additional Sessions Judge, Erode, in S.C.No.68 of 2007, from the charges under Sections 498-A, 302, 201 and 203 of IPC. Challenging the said acquittal, the petitioner herein, father of the deceased who was examined as P.W.1 in this case has preferred this criminal revision.
2. The case of the prosecution in brief is that the deceased Kalaiselvi is the daughter of P.W.1 and sister of P.W.2. About 14 years prior to the death of the deceased, the marriage of Kalaiselvi was performed with the accused who was working as a police constable. After the marriage, the deceased also gave birth to two female children. Ten years after the marriage, the accused developed a habit of consuming liquor and started to harass the deceased. The accused used to assault the deceased and one such time, her tooth was broken. Both the accused and the deceased was staying in the police quarters at Perundurai. P.Ws.4 and 5 are the neighbours who were also staying in the police quarters. On 29.06.2006, at about 8.00a.m., P.Ws.3 and 4 were taking water from the public water tank. The deceased also came to take water from the tank. Then the accused came out of the house in an angry mood saying “that he would come and see the deceased”. As P.Ws.3 and 4 already heard the noise inside the house, they enquired the deceased and the deceased informed that the accused was quarrelling with her. At about 10.45 a.m., P.W.2 brother of the deceased came to her house. The deceased informed P.W.2 that he was assaulted by her husband accused. P.W.2 thereafter went and informed about this to his father P.W.1. At about 12.30p.m., the accused returned to his house. Then on hearing noise, P.W.4 and others went to the house of the accused and they were informed by the accused that his wife had committee suicide by hanging. P.W.4 and others went and saw the body of the deceased on the floor. P.W.3 who came to the house of the deceased informed P.W.1 over the phone about the death of the deceased. P.W.1 came to the house of the accused. P.W.1 saw a contusion on the right hand of the deceased and another injury on the left side of the head and also saw blood oozing out from the ear. The food materials were strewn around the kitchen. He found the cooker was filled cooked rice. He also saw broken pieces of glass bangles around the place of occurrence. He went to the police station and gave complaint Ex.P.1. P.W.24, Inspector of Police on receipt of the complaint Ex.P.1, registered a case in Crime No.391 of 2006, for the offence under Section 498-A and 306 IPC and prepared the First Information Report Ex.P.25.
3. P.W.27, Inspector of Police took up the investigation and went to the scene of occurrence and prepared the observation mahazar and rough sketch. He also recovered a Torn nylon saree which was lying in the floor and other portion of saree which was hanging from the roof. He held inquest over the body of the deceased and recorded the statement of witnesses and prepared the inquest report Ex.P.13. Then he sent the body for post mortem examination. On the same day at 9.00p.m., he arrested the accused who was standing in the bus stand and sent him to the hospital for medical treatment and for getting the drunkenness certificate.
4. On 30.06.2006, P.W.15 Doctor conducted autopsy on the body of the deceased and found the following external injuries:
i)Contusion around the neck which measured 3 cms.
ii)Ligature mark around the neck.
iii)The skin around the neck was removed for further examination.
iv)Blood clot at the front portion of thyroid cartilage.
v)Oozing of blood through the left ear.
vi)A contusion measuring 4 x 3 cms on the left temporal region.
vii)When it was dissected, blood clot was found beneath.
viii)A contusion measuring 8 x 5 cms at the right elbow.
ix)An abrasion measuring 6 x 2 cms just above the injury No.8.
x)Abrasions measuring 1 x 1 cm at the back of right hand.
Abrasion measuring 2 x 2 cm on the left elbow.”
The Doctor found that the hyoid bone was not broken and there was blood stains around the neck. The Doctor concluded that the death of the victim was due to strangulation. He issued post mortem certificate Ex.P.8 and final report Ex.P.9.
5. The Investigation Officer sent an alteration report to the court altering the penal provisions from 498(A) and 306 IPC to Sections 498(A), 302, 201 and 203 IPC. The alteration report is Ex.P.37.
6. P.W.28 Inspector of Police took up further investigation and after completing the investigation, he laid the final report against the accused.
7. In order to establish the case, the prosecution has examined P.Ws.1 to 20, marked Exs.P.1 to P.34, produced material objects M.Os.1 to 8. When the accused was questioned under Section 313 Cr.P.C, he denied his complicity. He also filed a written statement. In the written statement, the accused had stated that he returned to the house on 29.06.2006 at about 12.00noon. At that time, he saw the crowd in the house. Inside the house he saw the deceased lying dead. The jewels which she was wearing was missing. He informed this over phone and the police came and enquired. In the mean time, his father-in-law P.W.1 and brother-in-law P.W.2 came there and they had given false complaint against the accused. It is further stated that PW.4 Pushparani, P.W.5 Chandrakala and one Usha did not come to his house. It is further stated that the accused was not in the habit of drinking and he did not sustain any injury. The trial Court after analysing the evidence, acquitted the accused from all the charges.
8. The learned counsel appearing for the revision petitioner submitted that though the medical evidence let in by the prosecution has established that the deceased had died due to homicidal violence, the learned Judge has erroneously held that the evidence of the Doctor had been diluted in the cross examination. The learned Judge observed that the Doctor has given a strong evidence in the Chief Examination in support of the prosecution, but diluted when he was cross examined by the defence witnesses. The learned counsel also pointed out from the evidence that the opinion of the Doctor has not been diluted in the cross examination. The learned counsel for the petitioner further submitted that P.Ws.4 and 5, the neighbours who are ladies have clearly deposed that at the time of occurrence, the accused was available in the house. But he had filed a false written statement stating that he was not available in the house and falsely stated that the jewels of the deceased were missing.
9. The learned Additional Public Prosecutor submitted that after the arrest, the accused was taken to the hospital and the Doctor-P.W.17 who examined him found injuries on the accused. The accident register is marked as Ex.P.13 and before the Doctor, the accused had admitted that the was at his resident at about 11.00a.m., and he sustained injuries by the hands of the deceased.
10. Per contra, learned counsel appearing for the first respondent/accused submitted that there is no direct eye-witness to the occurrence and the circumstances let in by the prosecution do not lead to the guilt of the accused. The opinion of the Doctor that the deceased died due to strangulation has been shattered in the cross examination by the defence. The learned counsel appearing for the first respondent submitted that it is unsafe to rely on the evidence of the Doctor and to conclude that this is a case of homicidal death. The learned counsel for the respondent/first accused further submitted that there was no motive for the accused to murder the deceased and even P.Ws.4 and 5 admitted that there was only a wordy quarrel among the accused and the deceased. The learned counsel for the petitioner further submitted that P.Ws.4 and 5 though were available at the time of inquest, they have not been examined during inquest and their statements were not recorded at that time and they were subsequently shown as witnesses. Though they were said to have been examined on the same day of the inquest the statements reached the court only on 31.06.2006 and there is no explanation for the delay.
11. The learned counsel for the respondent pointed out that the hyoid bone was not fractured and there was no fracture of larynx and Trechea and there was no rupture of Carotid Artery. There was no fracture of Thyroid cartilage and the death was more probable by suicide.
12. The learned counsel for the respondent further submitted that the version of the accused given in the written statement should be accepted and no jewels were found in the body of the deceased and the evidence of P.W.9, that the jewels were removed is not acceptable one. The learned counsel for the respondent further added that there is no manifest illegality in the Judgment of the trial Court and no inference should be made erroneously and he also relied on the decision of the Honourable Supreme Court reported in 2008(3) SCC 423 (Johar and others vs. Mangal Prasad and another).
13. The learned Additional Public Prosecutor pointed out that in the photograph of the dead body, two bangles and ear rings were found and the Investigation Officer had admitted that those jewels were removed with his permission.
14. This Court considered the submission made by all the parties and perused the records.
15. There is no eye-witness to the occurrence and the case rests upon the circumstantial evidence. The circumstances let in by the prosecution against the accused are:
(i) The accused often used to assault his wife/the deceased in a drunken mood.
(ii) On the date of occurrence, in the morning there was a quarrel between the accused and the deceased and the deceased was assaulted by the accused.
(iii) The accused went inside the accuse. P.W.3 and P.W.4 heard the noise and the accused came out of the house and informed them that his wife committed suicide.
(iv) The injuries were found on the accused and on the deceased.
(v) As per medical evidence, the deceased died due to homicidal violence.
16. As far as the first circumstance is concerned, as per the evidence of P.Ws.1 to 5, and 7, the accused was in the habit of drinking and used to quarrel with his wife and assaulted her. P.Ws.1 and 2 are father and brother of the deceased. P.W.3 was known to P.W.1’s family. P.Ws.4 and 5 are neighbours of the accused and deceased and P.W.7 is the neighbour as well as friend of the accused. Therefore, the fact that the accused used to quarrel and assault his wife is established.
17. Regarding the second circumstance, P.W.2 brother of the deceased who came to the house of the deceased at 10.45 a.m., was informed by the deceased that she was assaulted by the accused and in turn it was also informed to his father. P.Ws.4 and 5 ladies who are neighbours heard the noise from the house of the accused and when the deceased came outside of the house at about 8.30a.m., to fetch water from the water tap, P.Ws.4 and 5 have enquired her and they were informed that her husband was quarrelling with her. Therefore, the second circumstance also has been established by the prosecution.
18. With regard to the third circumstance, it is the evidence of P.Ws.4 and 5 at about 10.45 a.m., or 11.00a.m., the deceased once again came to fetch water from the tap and she informed P.Ws.4 and 5 that she would again come back and take more water. But she did not come out again. The accused entered into the house and thereafter P.Ws.4 and 5 heard the noise from the house. After some time, the accused came out from the house and informed them that the deceased had committed suicide. This evidence of Pws.4 and 5 established the fact that at the time of occurrence, the deceased was present in the house. After the noise was heard by P.Ws.4 and 5, from the house of the deceased and the accused, neither the deceased nor the accused came out of the house and both of them had been inside the house. Only after the accused himself came out of the house and informed P.Ws.4 and 5 that the deceased had committed suicide, they went inside and saw the deceased lying inside the room. P.Ws.4 and 5 tried to give water to the deceased, but it was not possible as the deceased died already.
19. Though the accused had denied his presence in the house at the relevant time and he had stated that he is returned to the house at 12.00 noon, he saw the crowd and found the deceased lying dead, the version of the accused is not acceptable. The evidence of P.Ws.4 and 5 is very natural and they are ladies who are residing nearby the house of the deceased and they had no animosity to depose falsely against the accused. Of course, they were not examined during the inquest and their statements were recorded belatedly, but it cannot be a reason for rejecting the evidence of P.Ws.4 and 5. Therefore, the presence of the accused at the relevant point of time in the house is also established by the prosecution.
20. When the above said circumstance was put to the accused under Section 313 Cr.P.C., the accused instead of making an attempt to explain or to clarify the incriminating circumstance against him, he had totally denied and also filed a written statement to that effect with some more inconsistent version. In the written statement, the accused also stated that the jewels of the deceased were missing. As per the evidence, some of the jewels have been removed before the arrival of the police. As it is within the knowledge of the accused as to what happened inside the house, it is his duty to explain as per Section 106 of the Indian Evidence Act, which reads as follows:
“106. Burden of proving fact especially within knowledge:- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”
21. In a case of circumstantial evidence, from the falsity of the defence plea and false answers given to court when the accused was questioned, the Court may take it as an additional incriminating circumstance against the accused and it would be one more link in the chain of circumstances.
22. The important circumstance that the accused was present in the house at the relevant time being established by the prosecution, if it is further established by the prosecution that the deceased died due to homicidal violence, then all the circumstances earlier pointed out would lead only to the guilt of the accused and nothing else. On the other hand, if it is not possible to establish that the deceased died due to homicidal violence, then it would be difficult, even though all the circumstances earlier mentioned one held to be proved, to hold that the accused committed homicidal violence. Therefore all the other circumstances being established, now whole case rests upon the medical evidence.
23. Before discussing regarding medical evidence, it is pertinent to point out at this stage certain facts from the oral evidence of the prosecution case. This Court accepted the evidence of P.Ws.4 and 5. It is their evidence that they were informed by the accused that the deceased had committed suicide by hanging. When P.Ws.4 and 5 entered into the house, they found the body of the deceased which was already brought down. As per the observation mahazar also half of the saree was pendent connected to the roof. The other piece of the saree was on the floor. As per column 9 and 15 of the inquest report, the accused himself had cut the saree and brought down the deceased. It is the evidence of P.W.1, father of the deceased that after getting information, when he went into the house of the deceased, he saw the accused being present there.
24. As per Ex.P.8, post mortem report by P.W.15 Doctor, the injuries found on the body of the deceased are as follows:
External Injuries:-
i) Contusion around the neck which measured 3 cms.
ii) Ligature mark around the neck.
Iii)The skin around the neck was removed for further examination
iv) Blood clot at the front portion of thyroid cartilage.
v) Oozing of blood through the left ear.
vi) A contusion measuring 4 x 3 cms on the left temporal region.
Vii)When it was dissected, blood clot was found beneath.
Viii)A contusion measuring 8 x 5 cms at the right elbow.
ix)An abrasion measuring 6 x 2 cms just above the injury No.8.
x)Abrasions measuring 1 x 1 cm at the back of right hand.
Abrasion measuring 2 x 2 cm on the left elbow.”
Internal Injuries:
Heart 200 grams congested. C/s empty. Lung right 400 grams left 350 grams. Both lungs congested. Hyoid bone preserved. Stomach contained 300 ml of partially digested food. Liver 1300 grams congested. Spleen 100 grams congested. Kidney’s both 200 grams congested. Bladder empty. Uterus 50 grams c/s empty. Skull intact. Sub aponeurotic clot present at right parietal region. Brain 1300 grams congested. Spinal column intact. Sub conjunctional Haemorrhage present. Viscera and lung preserved.
25. It is the definite opinion of the Doctor that the deceased would appear to have died of violent ligature compression over the neck. In the cross examination, Doctor had admitted that there was no fracture of hyoid bone and fracture of Larynx and Trachea was not there and there is possibility of Thyroid cartilage being broken in case of strangulation.
26. In the Modi’s Medical Jurisprudence and Toxicology, 22nd Edition at Page No.270, the difference between hanging and strangulation are given :
Hanging
Strangulation
1
Mostly suicidal.
Mostly homicidal.
2
Face Usually pale and petechiae rare.
Face Congested, livid and marked with petechiae.
3
Saliva Dribbling out of the mouth down on the chin and chest.
Saliva No such dribbling.
4
Neck Stretched and elongated in fresh bodies
Neck Not so
5
External signs of asphyxia, usually not well marked
External sings of asphyxia, very well marked (minimal if death due to vasovagal and carotio sinus effect).
6
Bleeding from the nose, mouth and ears very rare.
Bleeding from the nose, mouth and ears may be found.
7
Ligature mark Oblique, non continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment -like.
Ligature mark Horizontal on transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish.
8
Abrasions and ecchymoses round about the edges of the ligature mark, rare.
Abrasions and ecchymoses round about the edges of the ligature mark, common.
9
Subcutaneous tissues under the mark White, hard and glistening.
Subcutaneous tissues under the mark Ecchymosed.
10
Injury to the muscles of the neck Rare.
Injury to the muscles of the neck Common
11
Carotid arteries, internal coats ruptured in violent cases of a long drop.
Carotid arteries, internal coats ordinarily ruptured.
12
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.
13
Fracture dislocation of the cervical vertebrae Common in judicial hanging.
Fracture dislocation of the cervical vertebrae Rare.
14
Scratches, abrasions and bruises on the face, neck and other parts of the body Usually not present
Scratches, abrasions fingernail marks and bruises on the face neck and other parts of the body Usually present.
15
No evidence of sexual assault
Sometimes evidence of sexual assault.
16
Emphysematous bullae on the surface of the lungs Not present.
Emphysematous bullae on the surface of the lungs May be present.
As per the above differences, there was bleeding from the ears and there were injuries on the face and ecchymoses was found. As sub conjunctional haemorrhage was present, the Doctor has opined it is a case of homicidal violence. But at the same time, most of the symptom for strangulation were not found such as fracture of the larynx and trachea hyoid bone also was not fractured. Fracture or dislocation of the cervical vertebrae was absent. Though on probabilities, the medical evidence suggests more for strangulation than for hanging, unless the court is able to conclude definitely from the medical report of the Doctor, it is a case of only homicidal death and not suicidal death, it would be very unsafe to convict the accused relying on such medical evidence. Of course, there may be cases where medical opinion is taken as corroborative evidence for convicting, but in cases where the whole case rests mainly on the medical opinion, it is the duty of the court before relying on such medical evidence to make it sure that no other contrary opinion is possible. Always it is the principle that benefit of doubt must be given to the accused at every stage. Further this case being the revision against acquittal, this Court does not want to remand back the matter to the trial Court wherein once again it will be difficult for the trial court to conclude whether the death of the deceased is due to homicidal violence or not. The injuries sustained by the accused also can be taken as a circumstance only if the death of the deceased is established as homicidal violence, otherwise may be those injuries could have been sustained at the time of quarrelling both the accused and deceased as stated by him before the Doctor.
27. Further from the available occular evidence and other materials, this court feels that it is more suggestive it is a case of suicide, though the accused had denied his presence in the house at the time of occurrence. As per the available materials and according to the prosecution it was only the accused who had cut the saree and brought down the deceased who was hanging. From the photos and observation mahazar, it could be seen the saree which was used for hanging had been cut into two pieces. If the accused had strangulated the deceased, after strangulation, in order to show it is a case of suicide, he would not have cut the saree into two pieces.
28. Regarding the charge under Section 498-A IPC, this Court does not want to reappraise the evidence. The accused and the deceased lived as husband and wife for more than 10 years.
29. In the result, the criminal revision petition is dismissed.
ksr
To
1.The First Additional Sessions Judge, Erode.
2.The Deputy Superintendent of Police, District Crime Branch, Erode.
(Crime No.391 of 2006)
3.The Public Prosecutor, High Court,
Madras