{"id":123159,"date":"2008-03-17T00:00:00","date_gmt":"2008-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kadar-moideen-vs-state-represented-by-on-17-march-2008"},"modified":"2014-02-11T02:00:51","modified_gmt":"2014-02-10T20:30:51","slug":"kadar-moideen-vs-state-represented-by-on-17-march-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kadar-moideen-vs-state-represented-by-on-17-march-2008","title":{"rendered":"Kadar Moideen vs State Represented By on 17 March, 2008"},"content":{"rendered":"
Madras High Court<\/div>\n
Kadar Moideen vs State Represented By on 17 March, 2008<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 17\/03\/2008\n\nCORAM\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE K.K.SASIDHARAN\n\nCRIMINAL APPEAL (MD) NO.149 OF 2007\n\nKadar Moideen\t\t\t\t..  Appellant\n\nVs.\n\nState represented by\nthe Inspector of Police,\nK.Pudur Police Station,\nMadurai.\nCrime No.402 of 2003\t\t\t..  Respondent\n\n\n\n\tThis criminal appeal is preferred under Section 374 Cr.P.C. against the\njudgment of the learned Sessions Judge, Mahila Court, Madurai made in S.C.No.100\nof 2005, dated 25.01.2007.\n\n\n!For Appellant  ... Mr.A.P.Muthupandian\n\n\n^For Respondent ... Mr.N.Senthurpandian, APP\n\n\n:JUDGMENT\n<\/pre>\n
(The judgment of the court was delivered by M.CHOCKALINGAM, J.)<\/p>\n
\tThis appeal challenges the judgment of the Sessions Division, Mahila
\nCourt, Madurai made in S.C.No.100 of 2005, whereby the appellant\/sole accused
\nstood charged under Sections 498-A, 302 and 304-B IPC and on trial, he was found
\nguilty under Sections 498-A and 302 IPC and awarded with three years R.I. and to
\npay a fine of Rs.500\/-, in default to undergo 6 months R.I. and also life
\nimprisonment and to pay a fine of Rs.1000\/-, in default to undergo one year R.I.
\nrespectively, but he was acquitted of the third charge under Section 304-B IPC.
\nHence, this appeal has been brought forth by the appellant before this court.\n<\/p>\n
\t2.The short facts necessary for the disposal of this appeal could be
\nstated thus:\n<\/p>\n
\ta)P.W.1, Nabisabi is the resident of D.R.O. Colony, Thiruvalluvar Nagar.
\nP.W.2 is her husband and is a blind man. The deceased Kansool Sheriba is the
\ndaughter of P.Ws.1 and 2. She was given in marriage to the accused on
\n21.10.2001. At that time, 25 sovereigns of gold jewels and Rs.9000\/- were given
\nto her. At the time of the marriage, the accused misrepresented that he is the
\nDental Doctor and it was also believed. But, later it came to know that he was
\nnot a Doctor, but he was a Compounder attached to a Dental Doctor.\n<\/p>\n
\tb)On the request of the accused to have a separate clinic, it was also
\narranged for him. P.W.1 gave Rs.14,000\/- for the purpose of instruments to be
\nplaced in the clinic and further, she has given advance of Rs.3000\/-.
\nThereafter, then and there, the accused threatened the deceased and asked her to
\nget money or jewels from her mother’s family. The deceased became pregnant. For
\ndelivery, she came to her mother’s house. On 16.12.2002, she got a child and it
\nwas also born through Cesarean operation, for which P.W.1 spent Rs.20,000\/-.
\nThereafter, the accused wanted to have a separate residence. Accordingly, a
\nseparate house was arranged at D.R.O. Colony near the house of P.W.1. An advance
\nof Rs.5000\/- was also paid by P.W.1 and the accused and the deceased have been
\nliving together.\n<\/p>\n
\tc)On the date of occurrence, namely on 26.11.2003, the deceased came to
\nthe house of her parents, since it was a Ramzan day, and met all. Thereafter,
\nshe left for her house. At about 11.00 a.m., P.W.1 went to the house of deceased
\nto invite her for food. At that time, she found that all the doors were kept
\nclosed and she was knocking the doors, but it was not opened. She peeped through
\nthe hole in the locker and found that the deceased was hanging. Again she
\nknocked the doors. The accused opened the same and came out. When she raised
\nalarm, P.Ws.5 to 8 came there. The accused fled away from the place of
\noccurrence.\n<\/p>\n
\td)Immediately, the deceased was taken to the Madurai Rajaji Government
\nHospital, where she was declared dead. P.W.1 proceeded to the respondent police
\nstation, where P.W.16, the Sub Inspector of Police was on duty at that time.
\nP.W.1 gave Ex.P.1, the complaint to P.W.16, on the strength of which, a case
\ncame to be registered in Crime No.402 of 2003 under Section 174 Cr.P.C. Ex.P.13,
\nthe F.I.R. was despatched to the Court. \te)Since the case was registered under
\nSection 174 Cr.P.C. and the death occurred within 7 years of the marriage, the
\nmatter was informed to P.W.15, the R.D.O.  On receipt of the copy of the F.I.R.,
\nhe made an inspection in the presence of the witnesses and recorded the
\nstatement of the witnesses. He conducted inquest on the dead body of the
\ndeceased in the presence of the witnesses and panchayatdars and prepared Ex.P.8,
\nthe inquest report. Ex.P.11 and Ex.P.12 were the reports of the R.D.O.\n<\/p>\n
\tf)Pursuant to the requisition made, the dead body of the deceased was
\nsubjected to post-mortem by P.W.13, the Doctor attached to the Madurai Medical
\nCollege. P.W.13 has issued Ex.P.5, the post-mortem certificate, wherein he has
\nopined that the deceased would appear to have died of Asphyxia due to hanging
\nand also the injuries sustained on her skull.\n<\/p>\n
\tg)The further investigation was taken up by P.W.18, the Assistant
\nCommissioner of Police, Thallakulam. On receipt of the copy of the F.I.R., he
\nproceeded to the spot, made an inspection in the presence of the witnesses and
\nprepared Ex.P.3, the observation mahazar and Ex.P.14, the rough sketch. He
\nrecovered the material objects from the place of occurrence. After the issuance
\nof post-mortem certificate, the case was converted to Sections 302, 304-B and
\n498-A IPC and Ex.P.15, the altered report was despatched to the Court. On
\n28.11.2003, the accused was arrested and he was sent for judicial remand. All
\nthe material objects recovered from the place of occurrence and from the dead
\nbody of the deceased were sent for chemical analysis by the Forensic Science
\nDepartment, which resulted in two reports, namely Ex.P.18, the Chemical
\nAnalyst’s report and Ex.P.19, the Serologist’s report. On completion of the
\ninvestigation, he filed the final report before the court concerned.\n<\/p>\n
\t3.The case was committed to the court of Sessions and necessary charges
\nwere framed. In order to substantiate the charges, the prosecution examined 18
\nwitnesses and also relied on 19 exhibits and 7 M.Os. On completion of the
\nevidence on the side of the prosecution, the accused was questioned under
\nSection 313 Cr.P.C. as to the incriminating circumstances found in the evidence
\nof prosecution witnesses, which he flatly denied as false. No defence witness
\nwas examined. The trial court heard the arguments advanced, scrutinized the
\nmaterials available and took the view that the prosecution has proved the case
\nbeyond reasonable doubt in respect of first two charges, namely under Sections
\n498-A and 302 IPC and has given punishments as referred to above and it has made
\na judgment of acquittal in respect of the charge under Section 304-B IPC. Hence
\nthis appeal has been preferred at the instance of the appellant herein.\n<\/p>\n
\t4.Advancing arguments on behalf of the appellant, Mr.A.P.Muthupandian, the
\nlearned counsel, would submit that in the instant case, the prosecution had no
\ndirect evidence at all; that it rested its case exclusively on the
\ncircumstantial evidence; that P.Ws.1 and 5 to 8 were examined as witnesses,
\nspeaking about the circumstances; that the first and foremost thing in the
\ninstant case is that Ex.P.1, which was placed by P.W.1 to P.W.16, could not have
\nbeen the first information; that P.W.1 has categorically admitted that the
\ncomplaint was drafted by one Iqbal, who was not examined; that on the contrary,
\nP.W.4 has deposed that it was written by one Sulaiman and he was also not
\nexamined; and that it would be quite clear that the complaint written by Iqbal
\nor the complaint written by Sulaiman was the earliest one, but P.W.1 would claim
\nthat she gave complaint to P.W.16 and it was reduced into writing and hence
\nEx.P.1 could not have been the complaint, which was given in some other point of
\ntime and thus, the non production of the earlier complaint would be fatal to the
\nprosecution case.\n<\/p>\n
\t5.The learned counsel would further add that P.W.15, the R.D.O., has
\nexamined the witnesses; that at the time of examination of P.W.1, P.W.1 has
\ngiven a statement to the effect that the doors were kept closed and despite
\nknocking, it was not opened and that she broke open the door; that a perusal of
\nEx.P.3, the observation mahazar would indicate that certain stone marks were
\nfound on the doors and thus, it would indicate that the doors should have been
\nbroken open; that according to the evidence of P.W.1 before the court, the doors
\nwere actually opened by the accused and he came out and thus, all put together
\nwould indicate that P.W.1 could not have been in the place of occurrence at all.\n<\/p>\n
\t6.Added further the learned counsel that when Ex.P.1, complaint was given
\nto P.W.16, as claimed by the prosecution, the case was originally registered
\nunder Section 174 Cr.P.C.; that there was no specific case either for Section
\n498-A IPC or for Section 302 IPC; that had it been true that those allegations
\nwere available, there was no impediment for the police to register the case
\ndirectly for murder; that they have not done so; that though the statements of
\nP.Ws.5 to 11 under Section 161 Cr.P.C. were recorded by the Investigator the
\nvery day, it has reached the court only on 13.1.2004 and thus, it would be
\nindicative of the fact that those statements have been created for the purpose
\nof the case; that the statement given by the accused to the R.D.O. would clearly
\nreveal that he was actually sleeping at the time of occurrence and he did not
\nknow what was going on and further, he was in drunken mood and when he woke up,
\nhe found his wife hanging and under these circumstances, the prosecution neither
\nplaced the circumstances nor proved the same and that the lower court has not
\nconsidered any one of the aspects of the matter and hence the appellant is
\nentitled for acquittal in the hands of this court.\n<\/p>\n
\t7.The court heard the learned Additional Public Prosecutor on the above
\ncontentions and has paid its anxious consideration on the submissions made.\n<\/p>\n
\t8.It is not in controversy that the daughter of P.W.1, namely Kansool
\nSheriba, was found dead inside the house at about 11.00 a.m. on 26.11.2003. She
\nwas taken to the hospital and was declared dead.  A complaint was given by
\nP.W.1. Following the inquest made by the R.D.O., the dead body of the deceased
\nwas subjected to post-mortem by P.W.13, the Doctor, who has deposed before the
\ncourt and has also issued Ex.P.5, the post-mortem certificate to the effect that
\nthe deceased would appear to have died of Asphyxia due to hanging and also the
\ninjuries sustained on her skull. Thus, it would be quite clear that she died out
\nof homicidal violence and hence it has got to be recorded so.\n<\/p>\n
\t9.In order to substantiate the three charges levelled against the
\nappellant, the prosecution rested its entire case on the circumstantial
\nevidence, since it has no direct evidence to offer. So far as the third charge
\nunder Section 304-B IPC, the lower court is unable to see necessary evidence and
\nhence it has acquitted him of the said charge. So far as the other two charges
\nwere concerned, the lower court carefully scrutinized the materials available
\nand was satisfied that the prosecution has proved the case beyond reasonable
\ndoubt. This court is mindful of caution made by the settled prepositions of law
\nthat the circumstances placed and proved must constitute a chain without any
\nsnap, pointing to the hypothesis that except the accused no one else could have
\ncommitted the offence. Even if this test is applied, this court is satisfied
\nthat the prosecution has brought home the guilt of the accused. The following
\ncircumstances are indicative of the complicity of the assailant.\n<\/p>\n
\t10.Concededly, the occurrence has taken place inside the house, when the
\naccused\/appellant and his wife, namely the deceased, were residing together in
\nthe house. According to P.W.1, when she came to the house of the deceased at
\nabout 11.00 a.m., she found that the doors were locked inside and she knocked
\nthe doors for number of times, but it was not opened. The neighbours, who are
\nP.Ws.5 to 8, have come and despite their hectic and long attempt, the accused
\ncame out. Thus, when they entered into the house, they saw the dead body. Thus,
\nit would be indicative of the fact that only the accused and the deceased were
\ninside the house. The house was bolted inside and the accused was the only
\nperson in the company of the deceased and he came out from the house and under
\nthese circumstances, he is the only person who can speak about the cause of
\ndeath, because it should be only within his special knowledge.\n<\/p>\n
\t11.According to the appellant, what was the defence plea before the court
\nbelow and equally here also is that he was in a drunken mood and he was sleeping
\nand when he woke up, he found his wife hanging. Thus, the defence plea was all
\nalong that it was the commission of suicide, but the post-mortem certificate and
\nthe evidence of the post-mortem Doctor would clearly rule out the same. The
\nDoctor has clearly opined that she died not only of asphyxia due to hanging, but
\nalso due to the injuries sustained on the skull. Two injuries were found, but
\nthose injuries could not have been caused, at any stretch of imagination, by
\nhanging. Thus, it would be quite clear that the accused has caused those
\ninjuries on her skull and not satisfied with the same, he made it appear that
\nshe was hanging and thus, put an end to her life. P.Ws.5 to 8 have clearly
\nspoken about the facts, but the accused had no explanation to offer. The
\nprevious conduct of the accused prior to the occurrence was that he gave
\nmisrepresentation that he was the Dental Doctor and after marriage only, it was
\nfound not to be so and his statement was false and since the daughter was given
\nin marriage, P.W.1 tolerated the same. Further, P.W.1 has given money for
\ngetting instruments to open a separate dental clinic and thereafter, he could
\nnot carry on the business and hence, both the accused and the deceased came to
\nthe place of P.W.1 and they got a separate residence, for which the advance was
\nalso paid by P.W.1. Thus, all these things that the accused demanded money,
\njewels etc. have been clearly spoken to by the witnesses. There was an occasion
\nin the past, in which the accused actually tortured the deceased by placing the
\nburning cigarette on her body. Thus, the dowry harassment was clearly proved by
\nway of evidence, which has actually culminated the accused, at the time of
\noccurrence, to kill his wife.\n<\/p>\n
\t12.All the contentions put forth by the learned counsel for the appellant
\nare considered by the court. When Ex.P.1, the complaint was given, the earlier
\nstory has been narrated therein, wherein it has been clearly pointed out that
\nP.W.1 and the others saw the accused coming out of the house, where the dead
\nbody was found. Earlier, the case was registered under Section 174 Cr.P.C.
\nSubsequently, after the receipt of the post-mortem certificate, it was found to
\nbe one of murder and therefore, the case was altered to Section 302 IPC and the
\nother provisions. Thus, it would not affect the truth of the prosecution case.
\nFurther, so far as Ex.P.1, the complaint was concerned, the contention put forth
\nby the learned counsel for the appellant that it could not be the first
\ninformation; that according to P.W.1, it was written by one Iqbal and according
\nto P.W.4, it was written by Sulaiman and hence Ex.P.1 could not have been the
\nfirst report, cannot be countenanced for the simple reason that in Ex.P.1, the
\nentire circumstances are narrated, but nowhere, it was fixed that it was the
\naccused who committed the murder and therefore, the case was originally
\nregistered under Section 174 Cr.P.C. Subsequently, final report was given by the
\nR.D.O. as if it was the case of murder. The report of the R.D.O. was not
\ndecisive. The investigation was properly done and thereafter, the matter was
\ncommitted to the court of Sessions and necessary charges were framed. Hence even
\nassuming that the report was found to be so, it will not in any way affect the
\ncase of prosecution. Further, the statements of P.Ws.5 to 11 reached the court
\non 13.01.2004 cannot by itself be a reason to reject the prosecution case for
\nthe simple reason that they were only speaking about the circumstances and that
\nnowhere, they have stated that they witnessed the occurrence.\n<\/p>\n
\t13.The lower court has marshalled the evidence proper. Further, the
\nexplanation tendered by the accused would not be sufficient. It is true, the
\ncase is rested on the circumstantial evidence. It is a settled proposition of
\nlaw that in a given case where the case is rested on the circumstantial evidence
\nand there is one or two circumstances within the special knowledge of the
\naccused and when he suppressed those circumstances, that by itself could be
\ntaken as a link and the court can enter into the judgment. Hence, the lower
\ncourt has marshalled the evidence proper. Firstly, there was a dowry harassment
\nand thereafter, he has committed the murder, causing injury on the head of the
\ndeceased and also made it appear that she was hanging, thereby causing asphyxia.
\nThus, this court is unable to see any infirmity in the order of the lower court
\nboth factually and legally.\n<\/p>\n
\t14.In the result, the criminal appeal fails and the same is dismissed.\n<\/p>\n
vvk<\/p>\n
To\n<\/p>\n
1.The Sessions Judge,
\n  Mahila Court, Madurai.\n<\/p>\n
2.The Inspector of Police,
\n  K.Pudur Police Station,
\n  Madurai.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
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, […]<\/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-123159","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nKadar Moideen vs State Represented By on 17 March, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kadar-moideen-vs-state-represented-by-on-17-march-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kadar Moideen vs State Represented By on 17 March, 2008 - 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