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Kadar Moideen vs State Represented By on 17 March, 2008

Madras High Court
Kadar Moideen vs State Represented By on 17 March, 2008
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 17/03/2008

CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN

CRIMINAL APPEAL (MD) NO.149 OF 2007

Kadar Moideen				..  Appellant

Vs.

State represented by
the Inspector of Police,
K.Pudur Police Station,
Madurai.
Crime No.402 of 2003			..  Respondent



	This criminal appeal is preferred under Section 374 Cr.P.C. against the
judgment of the learned Sessions Judge, Mahila Court, Madurai made in S.C.No.100
of 2005, dated 25.01.2007.


!For Appellant  ... Mr.A.P.Muthupandian


^For Respondent ... Mr.N.Senthurpandian, APP


:JUDGMENT

(The judgment of the court was delivered by M.CHOCKALINGAM, J.)

This appeal challenges the judgment of the Sessions Division, Mahila
Court, Madurai made in S.C.No.100 of 2005, whereby the appellant/sole accused
stood charged under Sections 498-A, 302 and 304-B IPC and on trial, he was found
guilty under Sections 498-A and 302 IPC and awarded with three years R.I. and to
pay a fine of Rs.500/-, in default to undergo 6 months R.I. and also life
imprisonment and to pay a fine of Rs.1000/-, in default to undergo one year R.I.
respectively, but he was acquitted of the third charge under Section 304-B IPC.
Hence, this appeal has been brought forth by the appellant before this court.

2.The short facts necessary for the disposal of this appeal could be
stated thus:

a)P.W.1, Nabisabi is the resident of D.R.O. Colony, Thiruvalluvar Nagar.
P.W.2 is her husband and is a blind man. The deceased Kansool Sheriba is the
daughter of P.Ws.1 and 2. She was given in marriage to the accused on
21.10.2001. At that time, 25 sovereigns of gold jewels and Rs.9000/- were given
to her. At the time of the marriage, the accused misrepresented that he is the
Dental Doctor and it was also believed. But, later it came to know that he was
not a Doctor, but he was a Compounder attached to a Dental Doctor.

b)On the request of the accused to have a separate clinic, it was also
arranged for him. P.W.1 gave Rs.14,000/- for the purpose of instruments to be
placed in the clinic and further, she has given advance of Rs.3000/-.
Thereafter, then and there, the accused threatened the deceased and asked her to
get money or jewels from her mother’s family. The deceased became pregnant. For
delivery, she came to her mother’s house. On 16.12.2002, she got a child and it
was also born through Cesarean operation, for which P.W.1 spent Rs.20,000/-.
Thereafter, the accused wanted to have a separate residence. Accordingly, a
separate house was arranged at D.R.O. Colony near the house of P.W.1. An advance
of Rs.5000/- was also paid by P.W.1 and the accused and the deceased have been
living together.

c)On the date of occurrence, namely on 26.11.2003, the deceased came to
the house of her parents, since it was a Ramzan day, and met all. Thereafter,
she left for her house. At about 11.00 a.m., P.W.1 went to the house of deceased
to invite her for food. At that time, she found that all the doors were kept
closed and she was knocking the doors, but it was not opened. She peeped through
the hole in the locker and found that the deceased was hanging. Again she
knocked the doors. The accused opened the same and came out. When she raised
alarm, P.Ws.5 to 8 came there. The accused fled away from the place of
occurrence.

d)Immediately, the deceased was taken to the Madurai Rajaji Government
Hospital, where she was declared dead. P.W.1 proceeded to the respondent police
station, where P.W.16, the Sub Inspector of Police was on duty at that time.
P.W.1 gave Ex.P.1, the complaint to P.W.16, on the strength of which, a case
came to be registered in Crime No.402 of 2003 under Section 174 Cr.P.C. Ex.P.13,
the F.I.R. was despatched to the Court. e)Since the case was registered under
Section 174 Cr.P.C. and the death occurred within 7 years of the marriage, the
matter was informed to P.W.15, the R.D.O. On receipt of the copy of the F.I.R.,
he made an inspection in the presence of the witnesses and recorded the
statement of the witnesses. He conducted inquest on the dead body of the
deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.8,
the inquest report. Ex.P.11 and Ex.P.12 were the reports of the R.D.O.

f)Pursuant to the requisition made, the dead body of the deceased was
subjected to post-mortem by P.W.13, the Doctor attached to the Madurai Medical
College. P.W.13 has issued Ex.P.5, the post-mortem certificate, wherein he has
opined that the deceased would appear to have died of Asphyxia due to hanging
and also the injuries sustained on her skull.

g)The further investigation was taken up by P.W.18, the Assistant
Commissioner of Police, Thallakulam. On receipt of the copy of the F.I.R., he
proceeded to the spot, made an inspection in the presence of the witnesses and
prepared Ex.P.3, the observation mahazar and Ex.P.14, the rough sketch. He
recovered the material objects from the place of occurrence. After the issuance
of post-mortem certificate, the case was converted to Sections 302, 304-B and
498-A IPC and Ex.P.15, the altered report was despatched to the Court. On
28.11.2003, the accused was arrested and he was sent for judicial remand. All
the material objects recovered from the place of occurrence and from the dead
body of the deceased were sent for chemical analysis by the Forensic Science
Department, which resulted in two reports, namely Ex.P.18, the Chemical
Analyst’s report and Ex.P.19, the Serologist’s report. On completion of the
investigation, he filed the final report before the court concerned.

3.The case was committed to the court of Sessions and necessary charges
were framed. In order to substantiate the charges, the prosecution examined 18
witnesses and also relied on 19 exhibits and 7 M.Os. On completion of the
evidence on the side of the prosecution, the accused was questioned under
Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence
of prosecution witnesses, which he flatly denied as false. No defence witness
was examined. The trial court heard the arguments advanced, scrutinized the
materials available and took the view that the prosecution has proved the case
beyond reasonable doubt in respect of first two charges, namely under Sections
498-A and 302 IPC and has given punishments as referred to above and it has made
a judgment of acquittal in respect of the charge under Section 304-B IPC. Hence
this appeal has been preferred at the instance of the appellant herein.

4.Advancing arguments on behalf of the appellant, Mr.A.P.Muthupandian, the
learned counsel, would submit that in the instant case, the prosecution had no
direct evidence at all; that it rested its case exclusively on the
circumstantial evidence; that P.Ws.1 and 5 to 8 were examined as witnesses,
speaking about the circumstances; that the first and foremost thing in the
instant case is that Ex.P.1, which was placed by P.W.1 to P.W.16, could not have
been the first information; that P.W.1 has categorically admitted that the
complaint was drafted by one Iqbal, who was not examined; that on the contrary,
P.W.4 has deposed that it was written by one Sulaiman and he was also not
examined; and that it would be quite clear that the complaint written by Iqbal
or the complaint written by Sulaiman was the earliest one, but P.W.1 would claim
that she gave complaint to P.W.16 and it was reduced into writing and hence
Ex.P.1 could not have been the complaint, which was given in some other point of
time and thus, the non production of the earlier complaint would be fatal to the
prosecution case.

5.The learned counsel would further add that P.W.15, the R.D.O., has
examined the witnesses; that at the time of examination of P.W.1, P.W.1 has
given a statement to the effect that the doors were kept closed and despite
knocking, it was not opened and that she broke open the door; that a perusal of
Ex.P.3, the observation mahazar would indicate that certain stone marks were
found on the doors and thus, it would indicate that the doors should have been
broken open; that according to the evidence of P.W.1 before the court, the doors
were actually opened by the accused and he came out and thus, all put together
would indicate that P.W.1 could not have been in the place of occurrence at all.

6.Added further the learned counsel that when Ex.P.1, complaint was given
to P.W.16, as claimed by the prosecution, the case was originally registered
under Section 174 Cr.P.C.; that there was no specific case either for Section
498-A IPC or for Section 302 IPC; that had it been true that those allegations
were available, there was no impediment for the police to register the case
directly for murder; that they have not done so; that though the statements of
P.Ws.5 to 11 under Section 161 Cr.P.C. were recorded by the Investigator the
very day, it has reached the court only on 13.1.2004 and thus, it would be
indicative of the fact that those statements have been created for the purpose
of the case; that the statement given by the accused to the R.D.O. would clearly
reveal that he was actually sleeping at the time of occurrence and he did not
know what was going on and further, he was in drunken mood and when he woke up,
he found his wife hanging and under these circumstances, the prosecution neither
placed the circumstances nor proved the same and that the lower court has not
considered any one of the aspects of the matter and hence the appellant is
entitled for acquittal in the hands of this court.

7.The court heard the learned Additional Public Prosecutor on the above
contentions and has paid its anxious consideration on the submissions made.

8.It is not in controversy that the daughter of P.W.1, namely Kansool
Sheriba, was found dead inside the house at about 11.00 a.m. on 26.11.2003. She
was taken to the hospital and was declared dead. A complaint was given by
P.W.1. Following the inquest made by the R.D.O., the dead body of the deceased
was subjected to post-mortem by P.W.13, the Doctor, who has deposed before the
court and has also issued Ex.P.5, the post-mortem certificate to the effect that
the deceased would appear to have died of Asphyxia due to hanging and also the
injuries sustained on her skull. Thus, it would be quite clear that she died out
of homicidal violence and hence it has got to be recorded so.

9.In order to substantiate the three charges levelled against the
appellant, the prosecution rested its entire case on the circumstantial
evidence, since it has no direct evidence to offer. So far as the third charge
under Section 304-B IPC, the lower court is unable to see necessary evidence and
hence it has acquitted him of the said charge. So far as the other two charges
were concerned, the lower court carefully scrutinized the materials available
and was satisfied that the prosecution has proved the case beyond reasonable
doubt. This court is mindful of caution made by the settled prepositions of law
that the circumstances placed and proved must constitute a chain without any
snap, pointing to the hypothesis that except the accused no one else could have
committed the offence. Even if this test is applied, this court is satisfied
that the prosecution has brought home the guilt of the accused. The following
circumstances are indicative of the complicity of the assailant.

10.Concededly, the occurrence has taken place inside the house, when the
accused/appellant and his wife, namely the deceased, were residing together in
the house. According to P.W.1, when she came to the house of the deceased at
about 11.00 a.m., she found that the doors were locked inside and she knocked
the doors for number of times, but it was not opened. The neighbours, who are
P.Ws.5 to 8, have come and despite their hectic and long attempt, the accused
came out. Thus, when they entered into the house, they saw the dead body. Thus,
it would be indicative of the fact that only the accused and the deceased were
inside the house. The house was bolted inside and the accused was the only
person in the company of the deceased and he came out from the house and under
these circumstances, he is the only person who can speak about the cause of
death, because it should be only within his special knowledge.

11.According to the appellant, what was the defence plea before the court
below and equally here also is that he was in a drunken mood and he was sleeping
and when he woke up, he found his wife hanging. Thus, the defence plea was all
along that it was the commission of suicide, but the post-mortem certificate and
the evidence of the post-mortem Doctor would clearly rule out the same. The
Doctor has clearly opined that she died not only of asphyxia due to hanging, but
also due to the injuries sustained on the skull. Two injuries were found, but
those injuries could not have been caused, at any stretch of imagination, by
hanging. Thus, it would be quite clear that the accused has caused those
injuries on her skull and not satisfied with the same, he made it appear that
she was hanging and thus, put an end to her life. P.Ws.5 to 8 have clearly
spoken about the facts, but the accused had no explanation to offer. The
previous conduct of the accused prior to the occurrence was that he gave
misrepresentation that he was the Dental Doctor and after marriage only, it was
found not to be so and his statement was false and since the daughter was given
in marriage, P.W.1 tolerated the same. Further, P.W.1 has given money for
getting instruments to open a separate dental clinic and thereafter, he could
not carry on the business and hence, both the accused and the deceased came to
the place of P.W.1 and they got a separate residence, for which the advance was
also paid by P.W.1. Thus, all these things that the accused demanded money,
jewels etc. have been clearly spoken to by the witnesses. There was an occasion
in the past, in which the accused actually tortured the deceased by placing the
burning cigarette on her body. Thus, the dowry harassment was clearly proved by
way of evidence, which has actually culminated the accused, at the time of
occurrence, to kill his wife.

12.All the contentions put forth by the learned counsel for the appellant
are considered by the court. When Ex.P.1, the complaint was given, the earlier
story has been narrated therein, wherein it has been clearly pointed out that
P.W.1 and the others saw the accused coming out of the house, where the dead
body was found. Earlier, the case was registered under Section 174 Cr.P.C.
Subsequently, after the receipt of the post-mortem certificate, it was found to
be one of murder and therefore, the case was altered to Section 302 IPC and the
other provisions. Thus, it would not affect the truth of the prosecution case.
Further, so far as Ex.P.1, the complaint was concerned, the contention put forth
by the learned counsel for the appellant that it could not be the first
information; that according to P.W.1, it was written by one Iqbal and according
to P.W.4, it was written by Sulaiman and hence Ex.P.1 could not have been the
first report, cannot be countenanced for the simple reason that in Ex.P.1, the
entire circumstances are narrated, but nowhere, it was fixed that it was the
accused who committed the murder and therefore, the case was originally
registered under Section 174 Cr.P.C. Subsequently, final report was given by the
R.D.O. as if it was the case of murder. The report of the R.D.O. was not
decisive. The investigation was properly done and thereafter, the matter was
committed to the court of Sessions and necessary charges were framed. Hence even
assuming that the report was found to be so, it will not in any way affect the
case of prosecution. Further, the statements of P.Ws.5 to 11 reached the court
on 13.01.2004 cannot by itself be a reason to reject the prosecution case for
the simple reason that they were only speaking about the circumstances and that
nowhere, they have stated that they witnessed the occurrence.

13.The lower court has marshalled the evidence proper. Further, the
explanation tendered by the accused would not be sufficient. It is true, the
case is rested on the circumstantial evidence. It is a settled proposition of
law that in a given case where the case is rested on the circumstantial evidence
and there is one or two circumstances within the special knowledge of the
accused and when he suppressed those circumstances, that by itself could be
taken as a link and the court can enter into the judgment. Hence, the lower
court has marshalled the evidence proper. Firstly, there was a dowry harassment
and thereafter, he has committed the murder, causing injury on the head of the
deceased and also made it appear that she was hanging, thereby causing asphyxia.
Thus, this court is unable to see any infirmity in the order of the lower court
both factually and legally.

14.In the result, the criminal appeal fails and the same is dismissed.

vvk

To

1.The Sessions Judge,
Mahila Court, Madurai.

2.The Inspector of Police,
K.Pudur Police Station,
Madurai.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

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