Kannan @ Kithiyon Alexander v. State

BAIL SLIPThe Appellant/Accused viz., Kannan @ Kithiyon Alexander wasalready released on Bail in and by the Order of this Courtdated.09.1.2008 and made in Crl.M.P.No.1 of 2007 in Crl.A.No.1086 of2007.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 3-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.1086 of 2007Kannan @ Kithiyon Alexander.. Appellant/accusedvsState represented byThe Inspector of PoliceD-2 SRMC Police StationGreater ChennaiCrime No.440 of 2004... Respondent/ComplainantCriminal appeal under Sec.374(2) of the Code of CriminalProcedure against the judgment of the Principal Sessions Judge,Thiruvallur, made in S.C.No.49 of 2006 dated 22.11.2007.For Appellant: Mr.Shanmughavelayutham Senior Counsel for Mr.AM.Rahamath AliFor Respondent: Mr.N.R.Elango Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Principal SessionsDivision, Thiruvallur, made in S.C.No.49 of 2006 whereby theappellant/sole accused stood charged under Sections 498-A and 302 ofIPC and on trial, found guilty as per the charges and awarded threeyears Rigorous Imprisonment along with a fine of Rs.1000/- anddefault sentence and life imprisonment along with a fine of Rs.1000/- https://hcservices.ecourts.gov.in/hcservices/ and default sentence respectively.2.The short facts necessary for the disposal of this appeal canbe stated thus:(a) P.W.1 is the brother; P.W.2 is the mother; P.W.3 is thefather and P.Ws.4 and 5 are the sisters of the deceased BharathiSalomi. The appellant and the deceased married following a loveaffair, and they were living at No.2/234, Subbaiah Nagar,Iyyappanthangal, within the jurisdiction of the respondent policestation. There were occasions in which the deceased informed toP.Ws.1 to 5 that the accused was treating her with cruelty anddemanding cash and jewels as dowry. On 23.6.2004 at about 2.30 A.M.,P.Ws.1 to 5 received information from the accused that she died dueto cardiac arrest. On receiving that information, P.Ws.1 to 5 rushedto the house of the accused and found the dead body. Immediatelythey took the deceased to SRMC Hospital where one Doctor by nameBharani was on duty. On medical examination, the Doctor informedthem that she already died. Ex.P13 is the accident register copy,while Ex.P14 is the death report. (b) Thereafter, P.W.1 proceeded to the respondent police stationat about 9.00 A.M. and gave a report, Ex.P1, on the strength of whicha case came to be registered by P.W.19, the Inspector of Police, inCrime No.440/2004 under Sec.174 of Cr.P.C. The printed FIR, Ex.P22,was despatched to the Court. It was actually placed before theDeputy Superintendent of Police, P.W.18, for investigation.(c) On receipt of the copy of the FIR, P.W.18 took up the matterfor investigation, proceeded to the spot, made an inspection andprepared an observation mahazar, Ex.P16, and also a rough sketch,Ex.P15. Then he recovered M.O.3, bed spread, M.O.4, pillow cover,and M.O.5, towel, under a cover of mahazar. He went to the hospitaland prepared an observation mahazar, Ex.P18. Photographs were takenthrough P.W.10, photographer. M.Os.1 and 2 are photos and negativesrespectively. A requisition was given to the Revenue DivisionalOfficer (RDO), Ponneri, who came over there and conducted inquest onthe dead body. He has given an inquest report, Ex.P19. The RDO hasconducted an enquiry and has given a report, Ex.P20. (d) Pursuant to the requisition given by the InvestigatingOfficer, the dead body was subjected to postmortem by P.W.16, theProfessor, Department of Forensic Medicine, Kilpauk Medical College,Chennai. The Doctor has given a postmortem certificate, Ex.P11, withhis opinion that the deceased would appear to have died of Asphyxiadue to ligature strangulation.(e) The investigation was continued by P.W.18. Following themedical opinion and the report of the RDO, he altered the case toSections 302 and 498-A of IPC. Ex.P21 is the alteration report. https://hcservices.ecourts.gov.in/hcservices/ (f) P.W.19, the Inspector of Police, took up furtherinvestigation on the direction of P.W.18. He examined the witnessesand recorded their statements. The statements of the witnesses wererecorded by the Judicial Magistrate No.II, Poonamallee, under Sec.164of Cr.P.C. pursuant to the orders of the Chief Judicial Magistrate.The proceedings are marked as Ex.P9 and the statements are Ex.P10. Oncompletion of investigation, the Investigator filed the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution marched 19 witnesses and also relied on 24 exhibits and 8material objects. On completion of the evidence on the side of theprosecution, the accused was questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses which he flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt and hence found the appellant guilty and awarded thepunishment as referred to above. Hence this appeal at the instanceof the appellant.4.Advancing arguments on behalf of the appellant, the learnedSenior Counsel Mr.Shanmugavelayutham would submit that in the instantcase, the prosecution had no direct evidence to offer; that P.Ws.1 to5 are close relatives; that according to them, they receivedinformation as to the death of the deceased at 2.30 A.M., and theyrushed there and came to know about the death; and that theprosecution rested its case on two circumstances firstly an extra-judicial confession alleged to have been made by the appellant toP.W.8 orally, and secondly the medical opinion that was canvassedthrough P.W.16, the Doctor, who conducted postmortem. 5.The learned Senior Counsel would further add that both theabove evidence were actually shaky and should have been rejectedoutright by the trial Court; that as far as the extra-judicialconfession was concerned, P.W.8 was the witness examined for thatpurpose; that according to him, he was actually a stranger to theaccused; that there was no reason why the accused must go and makeany confession before him; that further the occurrence, according tothe prosecution, has taken place on 23.6.2004; but, according toP.W.8, the extra-judicial confession was made on 4.6.2004; that thiswould belie the evidence of P.W.8; that P.W.8 also added in hisevidence that the accused was kept in police custody for a few days;that apart from that, when the extra-judicial confession was made,the police was also present; and that under the circumstances, theevidence of P.W.8 has to be rejected.6.The learned Senior Counsel has vehemently put forth hisarguments as regards the medical opinion that was canvassed, that theevidence of the postmortem Doctor was actually contra to the https://hcservices.ecourts.gov.in/hcservices/ prosecution case; that P.W.16 did not support the prosecution case atall; that the material on record would go to show that the hyoid boneof the deceased was in tact, and there was no external injuries foundon the dead body of the deceased; that more particularly, the Doctorhad opined that death could not have occurred due to homicidalviolence; and that under the circumstances, the prosecution hasmiserably failed to prove the case. 7.The learned Senior Counsel further relied upon MODI's MedicalJurisprudence pointing to the differences what could be noticedbetween the case of strangulation and also hanging. The learnedSenior Counsel pointed out that the medical opinion canvassed throughP.W.16 was not in support of the prosecution, and hence he isentitled for acquittal in the hands of this Court. 8.The learned Senior Counsel further added that at the time ofquestioning under Sec.313 of Cr.P.C., the accused has categoricallystated that on the evening hours of 22.6.2004, he left the house andhe returned home only in the next morning, and thus he was actuallyabsent during the night hours; that under the circumstances, noanswer can be expected from him how such an occurrence has takenplace during night hours; that the prosecution has miserably failedto prove its case and hence he was to be given the benefit of doubt.9.The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.10.It is not in controversy that the dead body of one BharathiSalomi was taken to the hospital where she was medically examined bythe Doctor who declared her dead, and the Doctor gave the accidentregister copy. Following the inquest made by the RDO, the dead bodywas subjected to postmortem by P.W.16, the Doctor, who has given hisopinion that she died of asphyxia due to ligature strangulation. 11.It is not in controversy that the accused married thedeceased in the year 1998, and they were living together separately.P.Ws.1 to 5 were actually living away. On the date of occurrence,P.Ws.1 to 5 received information at about 2.30 A.M. that she died outof heart attack. At the outset, it remains to be stated that in agiven case, where the husband and wife were living together and herdeath has occurred, one would naturally expect a responsible answerfrom the husband how the death was caused. In the case on hand, thedefence plea before the trial Court and even before this Court wasthat the death was caused by commission of suicide by hanging. Theoccurrence has taken place at about 2.30 A.M. Now at this juncture,the learned Senior Counsel brought to the notice of the Court thestatement given by the accused before the trial Court when he wasquestioned under Sec.313 of Cr.P.C. that he was absent during nighthours on that day. Now it remains to be stated that it is not the https://hcservices.ecourts.gov.in/hcservices/ case of the accused that every day he used to be absent during nighthours; but, he happened to be absent that night. If to be so, forwhat purpose is not made known. Apart from this, it is pertinent topoint out that the evidence of P.Ws.1 to 5 that they received themessage as to the death of the lady at about 2.30 A.M. was neverdisputed by the appellant. Thus, it would be quite clear that themessage was passed on by the accused. It is also quite evident thathe was available in the house at 2.30 A.M. and further he informedthem that death has occurred by cardiac arrest. All would go to showthat he was very well available at the place, and it would also beliethe statement made by him before the trial Court at the time ofquestioning under Sec.313 Cr.P.C. that he was away during that nighthours, and he returned in the next morning. Thus it is contra to thedefence theory. From the above, it would be quite clear that he wasvery well available during night hours when the occurrence has takenplace. 12.The only question that arose for consideration under thestated circumstances would be whether it was a case where she diedout of hanging or by way of strangulation. Now the medical opinionwas canvassed through the postmortem Doctor. Apart from givingevidence before the Court, the Doctor has given the postmortemcertificate wherein it is found "An complete ligature abrasion 29x3cm seen over the Front sides and back of the neck below the thyroidcartilage on right side 8 cm below the mastoid process, 6 cms belowthe Left mastoid process and 8 cm below the chin. O/D ExtensiveReddish sub cutaneous haemorrhage over front and sides of the neck,Reddish haemorrhage over Larynx and its mucosa surface." This wouldclearly indicate that there was a ligature mark which was foundaround the neck, and it was also complete. Now, at this juncture, itwould be fit and proper to place on record the difference betweenhanging and strangulation as found in MODI's Medical Jurisprudenceand Toxicology, 23rd Edition as follows:HangingStrangulation7.Ligature mark – Oblique, non-continuous placed high up in theneck between the chin and thelarynx, the base of the groove orfurrow being hard, yellow andparchment-like.Ligature mark – Horizontal ortransverse continuous, round theneck, low down in the neck belowthe thyroid, the base of thegroove or furrow being soft andreddish.13.A very reading of the above medical opinion as found inEx.P11, postmortem certificate, would clearly indicate that what wasactually found as per the Doctor's opinion was that the ligature markwas complete and also around the neck. It would be quite clear thatthe possibility of hanging is actually ruled out. Under suchcircumstances, it is not correct on the part of the defence to statethat the medical opinion was not in favour of the prosecution.Contrarily the medical opinion was actually in favour of the https://hcservices.ecourts.gov.in/hcservices/ prosecution. At this juncture, the presence of the appellant/accusedat the time of occurrence, his coming with the false theory that shedied out of the cardiac arrest and taking a false plea that she diedout of hanging and the medical opinion that she died of asphyxia dueto ligature strangulation all would go to show that it was theaccused who has committed the crime causing death. It is wellsettled proposition of law that in a given case where a particularcircumstance was found missing, a responsible answer could be givenonly by the accused and if he comes with the false theory or hesuppresses a fact, that link has got to be filled up in order to makeit a complete chain. Now, in the case on hand, he has come with aninconsistent theory that he had passed on the information to P.W.1that she died out of cardiac arrest, and when he faced trial beforethe trial Court, he took a plea that it was hanging. But, themedical opinion canvassed was contra that she died of asphyxia due toligature strangulation. Thus all would make it evident that exceptthe accused, no one could have committed the offence. 14.As far as the extra-judicial confession alleged to have beenmade by the appellant/accused to P.W.8 was concerned, it has got tobe rejected on the following grounds. Firstly, the occurrence hastaken place on 23.6.2004. According to P.W.8, he was a stranger, andthe confession was made on 4.6.2004, and apart from that, the policewas also present when it was orally made. This would suffice toreject the confession. Even after rejecting that part of the extra-judicial confession alleged to have been made by the accused toP.W.8., this Court is of the considered opinion that thecircumstances recorded above would suffice pointing that it was hewho has committed the murder of his wife. 15.Added further, P.Ws.1 to 5 have categorically stated thatwhen they were living together, there were occasions in which he waspressing for dowry. The RDO has also made an enquiry and has givena report wherein it is found that there was dowry demand. Thetrial Court has marshaled the evidence proper and arrived at thecorrect conclusion which does not require any disturbance in thehands of this Court either factually or legally. 16.In the result, this criminal appeal fails, and the same isdismissed confirming the judgment of the trial Court. It is reportedthat the appellant is on bail. Hence the Sessions Judge shall takesteps to commit him to prison to undergo the sentence.Sd/-Deputy Registrar/True Copy/Sub.Asst.Registrarnsv https://hcservices.ecourts.gov.in/hcservices/ To:1.The Principal Sessions Judge, Thiruvallur2.The Judicial Magistrate No.I, Poonamallee.3.-do- Through The Chief Judicial Magistrate, Chengalpattu.4.The Superintendent, Central Prison, Puzhal, Chennai.5.The District Collector, Thiruvallur.6.The Director General of Police,Mylapore, Chennai.7.The Public Prosecutor, High Court, Madras.8.The Inspector of Police D-2 SRMC Police Station Greater Chennai 9.The Section Officer, Crl.Section, High Court, Madras.CRL.A.No.1086 of 2007NTK(CO)EM/31.8.09