IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal.No.1099 of 2007 Sivanandam ... Appellant vs. State, by Station House Officer, Mandarakuppam Police Station, Cuddalore District. (Cr.No.6/1994). ... Respondent Appeal against the judgment of the learned Principal Sessions Judge, Cuddalore, dated 9.8.2007 made in S.C.No.139 of 2007. For Appellant : Mr.S.Kolandasamy For Respondent : Mr.N.R.Elango Additional Public Prosecutor * * * * * J U D G M E N T
(Delivered by P.D.DINAKARAN,J.)
Challenge in this appeal is to the judgment of the learned Principal Sessions Judge, Cuddalore, dated 9.8.2007 in Sessions Case No.139 of 2007 convicting and sentencing the appellant/sole accused to life imprisonment for the offence of uxoricide.
2. The charge against the appellant is that on 9.1.1994 at about 1.30 a.m., due to aversion, while the deceased, his wife Devaki, was sleeping in the house, strangulated her neck and caused her instantaneous death and thereby perpetrated an offence punishable under Section 302 I.P.C.
3.1. The case of the prosecution can be compendiously stated as follows:-
The deceased Devaki is the second wife of the accused and the accused is the second husband of the deceased. After the death of her first husband, the deceased went to Trissur with her mother, where she developed intimacy with the accused. Though the accused was already married to another woman and was having two children, the deceased was given in marriage to the accused for the second time. But, the said marriage was not a bed of roses because of the first wife of the accused and there were frequent quarrels between them. Due to such quarrel, one week prior to the occurrence, the deceased went back to her parental home and informed her mother and brother Selvaraj that the accused is beating and threatening her with life.
3.2. While so, on 4.1.94, when the brother of the deceased, Selvaraj was talking with P.W.1 in front of his house, the accused came there and asked the deceased to come back to matrimonial home. As she refused, a quarrel ensued, which ended in beating her and Selvaraj pacifying them. On that night also, the quarrel continued and on the next day, after threatening the deceased, the accused went back to his house. On the evening of 8.1.94, the accused again came to the house of the deceased and forced her to return to his house, which ended in a brawl and the accused overstayed there on that night, on being pacified by Selvaraj, brother of the deceased. Thereafter, the deceased was not seen alive by anyone.
3.3. At about 1.30 a.m. on that night, on hearing the cries of the deceased, the brother of the deceased Selvaraj and P.W.1 came there and as the front door was found locked, they entered through the back door and saw the accused running away from the house through the back door. They found the deceased lying down with blood oozing out from her mouth. They examined the deceased and found her dead. After informing the relatives and villagers, the brother of the deceased Selvaraj had the complaint being drafted by one Yemperumal, a teacher and lodged the same at Oomangalam police station at about 8.45 a.m. The said complaint is marked as Ex.P.6.
3.4. P.W.8, Sub-Inspector of Police, on receipt of Ex.P.6, registered a case against the accused in Crime No.6 of 1994 for the offence under Section 302 I.P.C. and prepared the printed F.I.R., Ex.P.7. He sent the printed F.I.R. to Court and copies thereof to higher officials.
3.5. P.W.9, on receipt of information through wireless, proceeded to police station and obtained a copy of F.I.R. and took up investigation. On reaching the scene of crime at about 10.15 a.m., he prepared observation mahazar, Ex.P.1 and rough sketch, Ex.P.8. He caused photographs to be taken by the photographer, P.W.6. He conducted inquest between 11.30 a.m. and 2.00 p.m., in the presence of panchayatdars and witnesses, and prepared inquest report, Ex.P.9. During inquest, he examined the witnesses and recorded their statements. Thereafter, the body was sent to the hospital for post-mortem.
3.6. P.W.5, Assistant Surgeon attached to Government Hospital, Virudhachalam, conducted autopsy on the dead body of the deceased Devaki and noticed external and internal injuries. He issued Ex.P.3, post-mortem certificate, reserving his opinion as to the cause of death pending report with regard to hyoid bone and viscera report and on receipt of Ex.P.4, viscera report and Ex.P.5, hyoid bone report, he opined that the deceased would appear to have died of asphyxia about 36 to 48 hours prior to autopsy. Ex.P.5 – hyoid bone report, revealed that there is no evidence of any ante-mortem injury or fracture in the hyoid bone except for the postmortem fracture of left greater horn.
3.7. P.W.9 continuing with his investigation examined witnesses and recorded their statements. He formed a special team to arrest the accused. He recovered M.Os.3 and 4, clothings of the deceased and sent the same for chemical examination. He thereafter questioned the official witnesses and recorded their statements. He obtained Exs.P.3 to P.7 and examined the medical officers. Since the accused could not be arrested after a due search, the investigating officer filed absconding charge sheet against the accused on 31.10.1994 for the offence under Section 302 I.P.C.
3.8. After the case was committed to Court of Sessions, the accused was questioned and he denied his complicity. Hence, the trial commenced. To substantiate the charge against the appellant/accused, the prosecution examined 9 witnesses, marked 12 exhibits and produced 4 material objects. On completion of evidence on the side of prosecution, the accused was questioned under Section 313 Cr.P.C. on the incriminating materials, for which the accused made a total denial. Neither any witness was examined nor any document was marked on his side.
3.9. The trial Court, on scrutiny of materials placed and on hearing the arguments of both sides, found the appellant/accused guilty of the charge of murder and accordingly, convicted and sentenced him as referred to earlier. Hence, the present appeal.
4.1. The learned counsel for the appellant/accused vigorously contended that the prosecution case rests on circumstantial evidence, as the occurrence was not witnessed by any one and the circumstances brought out by the prosecution through the witnesses as regards the last seen theory and the motive are not sufficient to bring home the guilt of the accused and the prosecution has miserably failed to establish all the links in the chain of circumstances.
4.2. The learned counsel relying on the medical evidence contended that when the death of the deceased was due to strangulation, there must be a fracture to the hyoid bone, but as seen from Ex.P.5, the hyoid bone report, it is clear that no fracture was found in the hyoid bone and hence, the case of the prosecution that the death was due to strangulation is unbelievable and therefore, the appellant/accused is entitled for acquittal.
5.1. On the other hand, learned Additional Public Prosecutor contended that the prosecution has proved its case beyond all reasonable doubts by a complete chain of circumstances, without any missing links and hence, no interference is called for.
5.2. Countering the argument with regard to the report of hyoid bone, the learned Additional Public Prosecutor submitted that 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.
6. We heard the contentions of both sides and perused the entire materials on record.
7. It is not in dispute that the deceased Devaki died on account of homicidal violence. Through the evidence of the doctor, P.W.5 and Exs.P.3 to 5, post-mortem certificate, chemical analyst report and hyoid bone report, which revealed that the deceased died on account of asphyxia, the prosecution established the fact of homicidal violence. Hence, we have no hesitation to hold that the death of the deceased was due to homicidal violence.
8. Now, we have to consider whether the prosecution has proved the guilt of the accused beyond reasonable doubt?
9. The case rests solely on circumstantial evidence, as the occurrence was not witnessed by one. It is well settled principle that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. Thus, it is clear that in a case of circumstantial evidence, four tests are to be satisfied and they are:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
vide Eradu v. State of Hyderabad (AIR 1956 SC 316), Hukam Singh v. State of Rajasthan (1977)2 SCC 99), Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330], State of U.P. v. Sukhbasi [AIR 1985 SC 1224], Balwinder Singh v. State of Punjab[AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [AIR 1989 SC 1890] and Padala Veera Reddy v. State of A.P. [AIR 1990 SC 709].
10. Now, let us analyse whether the prosecution satisfies the above tests and establishes all the links in the chain of circumstances. The evidence of circumstances which the prosecution mainly relied upon is the evidence of P.Ws.1 to 3, who saw the accused just before and immediately after the occurrence and who speak about the previous as well as immediate motive.
11.1. The first circumstance is with regard to the continuous quarrel between the accused and the deceased, which is projected as motive for the occurrence. Though it is not necessary for the prosecution to establish the motive part of the occurrence in criminal cases, if there are eye witnesses to the occurrence, in the case of circumstantial evidence, motive plays a significant role to establish the guilt of the accused. The motive as put forth in the instant case is that the accused used to pick up frequent quarrels with the deceased and also beat her unnecessarily. This is spoken to by Selvaraj, brother of the deceased, who lodged the first information statement, Ex.P.6, in the case and by P.W.1, a friend and neighbour of the said Selvaraj. Since the said Selvaraj, brother of the deceased, died before the trial, let us refer to the complaint, Ex.P.6, lodged by him and the evidence of P.W.1.
11.2. It is seen from the complaint, Ex.P.6, that though the deceased married the accused knowing very well that he is already married to another woman and is having two children, there used to be quarrels between them and the accused was also in the habit of beating her. Because of that, the deceased left the matrimonial home and went back to her brother’s house and stayed there. The accused visited her brother’s house and asked the deceased to come back, but she refused. Annoyed by that, the accused shouted at her and threatened her with life. They were pacified by the brother of the deceased, Selvaraj. Even prior to the date of occurrence, the accused demanded the deceased to accompany him to his house, for which the deceased declined. The above averments made in the complaint given by Selvaraj, brother of the deceased, also corroborate with the evidence of P.W.1, who has spoken to on the same lines.
11.3. That apart, P.W.2, who is also a neighbour of Selvaraj, has stated in her evidence that because of the first wife of the accused, there used to be frequent quarrels between the accused and the deceased and the accused used to beat the deceased and hence, the deceased left her matrimonial home and stayed in her brother’s house and was eking her livelihood doing coolie work. It is her further evidence that the accused used to come to the work place of the deceased and ask the deceased to return back, but as the deceased refused, he shouted at her and threatened her with life.
11.4. From the above evidence of P.Ws.1 and 2 as well as the complaint, Ex.P.6, given by Selvaraj, it is crystal clear that the accused was pestering the deceased to return back to matrimonial home and since the deceased was afraid of his conduct of threatening her with life, refused to go along with him, which infuriated the accused to do away her as he said earlier. Thus, the continuous quarrel reflects the motive for the accused to cause the death of the deceased.
12. The next circumstance is the evidence with regard to immediate motive. It is averred in the complaint that on the date of occurrence also, there was a continuous quarrel between the couple from the morning as to the returning of the deceased to her matrimonial home and that Selvaraj intervened and pacified them. P.W.1 also corroborates the said averment with regard to the immediate motive. It is the evidence of P.W.2 that on that day, the accused came to the work place and demanded the deceased to accompany him to his house and since she refused, he left the place and went to the house of Selvaraj. As requested by Selvaraj, the accused stayed there at night and that Selvaraj pacified him that the issue could be resolved on the next day. Thus, the prosecution has also proved the immediate motive for the occurrence.
13. The third circumstance is the last seen theory. As already stated, on the date of occurrence, the deceased was in the house of Selvaraj, her brother and that the accused, who came there at about 9.00 a.m., picked up a quarrel demanding the deceased to accompany him to his house, which was refused and the quarrel continued till night. As could be seen from the evidence of P.W.2 that after the accused shouted at the deceased in the work place of the deceased, he left the place and that when she returned from her work, she saw the accused talking with Selvaraj and P.W.1 in front of the house of Selvaraj. According to Selvaraj, the quarrel continued till night and it was he who pacified the accused and requested him to stay there and that the issue could be resolved on the next day. The deceased was not seen alive thereafter. On that night, when Selvaraj took his bed along with P.W.1, they heard the distressing cries of the deceased and as the front door was found locked, they entered through the back door of the house and at that time, the accused came out of the house and ran away. They went inside and saw the deceased lying dead. Thus, on the above clinching circumstances, we are of the confirmed opinion that the prosecution has succeeded in establishing the last seen theory also. Moreover, it is an undisputed fact that the accused stayed that night with the deceased and he offers no explanation for the death of the deceased, which itself an additional link in the chain of circumstances as held by the Apex Court in various decisions. Hence, from the above clinching circumstances, we cannot but hold that it was the accused and none else who was responsible for the death of the deceased.
14.1. The core contention of the learned counsel for the appellant is that when the hyoid bone report, Ex.P.5, showed that there is no evidence of any antemortem injury or fracture in the hyoid bone except for the postmortem fracture of left greater horn, it would only disprove the case of prosecution that the accused strangulated the deceased. According to the learned Counsel, fracture of hyoid bond is sine quo non to show strangulation and they are inseparable twins.
14.2. In this context it is relevant to refer to the recent decision of the Apex Court in PONNUSAMY v. STATE OF TAMIL NADU, 2008 AIR SCW 3184, whereunder their Lordships have referred Taylor’s Principles and Practice of Medical Jurisprudence, Thirteenth Edition; and 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. The quintessence of the two books referred above is :
(i) 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;
(ii) Even in older people in which ossification is incomplete, consideration violence may leave this bone intact;
(iii) 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.
(iv) The age-dependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses.
(v) The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids. They hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity.
Ultimately, it is held that since many cases lack a hyoid bone fracture, the absence of this finding does not exclude strangulation as a cause of death.
14.3. Going by the above principles, if we analyze the present case, it goes beyond doubt that fracture of hyoid bone and strangulation are not directly connected. The deceased in the instant case was aged about thirty years and the principle that it is unusual to find fractures of the hyoid bone in a person under the age of 40 years, sinks well. Therefore, applying the above principles as enunciated by the Apex Court in the decision supra, we have no hesitation to hold that the contention of the learned Counsel for the Appellant does not hold good.
In view of our foregoing conclusion, we cannot but hold that the prosecution has satisfied the tests as referred to above and proved the guilt of the accused beyond all reasonable doubt. Therefore, there is no reason to interfere with the well-founded judgment of the trial Court and accordingly, the appeal is dismissed.
sra
To
1. The Principal Sessions Judge,
Cuddalore.
2. The District Collector,
Cuddalore.
3. The Director General of Police,
Chennai.
4. The Inspector of Police,
Mandarakuppam Police Station,
Cuddalore
5. The Superintendent,
Central Prison, Cuddalore.
6. The Public Prosecutor,
High Court,
Madras