Sivanandam v. State

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal.No.1099 of 2007Sivanandam... Appellant/Accusedvs.State, by Station House Officer, Mandarakuppam Police Station, Cuddalore District.(Cr.No.6/1994).... Respondent/ComplainantAppeal against the judgment of the learned Principal SessionsJudge, Cuddalore, dated 9.8.2007 made in S.C.No.139 of 2007.For Appellant:Mr.S.KolandasamyFor Respondent :Mr.N.R.ElangoAdditional Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)Challenge in this appeal is to the judgment of the learnedPrincipal Sessions Judge, Cuddalore, dated 9.8.2007 in Sessions CaseNo.139 of 2007 convicting and sentencing the appellant/sole accused tolife imprisonment for the offence of uxoricide.2. The charge against the appellant is that on 9.1.1994 at about1.30 a.m., due to aversion, while the deceased, his wife Devaki, wassleeping in the house, strangulated her neck and caused herinstantaneous death and thereby perpetrated an offence punishable underSection 302 I.P.C.3.1. The case of the prosecution can be compendiously stated asfollows:-The deceased Devaki is the second wife of the accused and theaccused is the second husband of the deceased. After the death of herfirst husband, the deceased went to Trissur with her mother, where shedeveloped intimacy with the accused. Though the accused was alreadymarried to another woman and was having two children, the deceased was https://hcservices.ecourts.gov.in/hcservices/ given in marriage to the accused for the second time. But, the saidmarriage was not a bed of roses because of the first wife of the accusedand there were frequent quarrels between them. Due to such quarrel, oneweek prior to the occurrence, the deceased went back to her parentalhome and informed her mother and brother Selvaraj that the accused isbeating 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 camethere and asked the deceased to come back to matrimonial home. As sherefused, a quarrel ensued, which ended in beating her and Selvarajpacifying them. On that night also, the quarrel continued and on thenext day, after threatening the deceased, the accused went back to hishouse. On the evening of 8.1.94, the accused again came to the house ofthe deceased and forced her to return to his house, which ended in abrawl and the accused overstayed there on that night, on being pacifiedby Selvaraj, brother of the deceased. Thereafter, the deceased was notseen alive by anyone.3.3. At about 1.30 a.m. on that night, on hearing the cries of thedeceased, the brother of the deceased Selvaraj and P.W.1 came there andas the front door was found locked, they entered through the back doorand 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 therelatives and villagers, the brother of the deceased Selvaraj had thecomplaint being drafted by one Yemperumal, a teacher and lodged the sameat Oomangalam police station at about 8.45 a.m. The said complaint ismarked 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 theoffence 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 higherofficials.3.5. P.W.9, on receipt of information through wireless, proceededto police station and obtained a copy of F.I.R. and took upinvestigation. On reaching the scene of crime at about 10.15 a.m., heprepared observation mahazar, Ex.P.1 and rough sketch, Ex.P.8. He causedphotographs to be taken by the photographer, P.W.6. He conducted inquestbetween 11.30 a.m. and 2.00 p.m., in the presence of panchayatdars andwitnesses, and prepared inquest report, Ex.P.9. During inquest, heexamined the witnesses and recorded their statements. Thereafter, thebody 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 Devakiand noticed external and internal injuries. He issued Ex.P.3, post-mortem certificate, reserving his opinion as to the cause of deathpending report with regard to hyoid bone and viscera report and on https://hcservices.ecourts.gov.in/hcservices/ receipt of Ex.P.4, viscera report and Ex.P.5, hyoid bone report, heopined that the deceased would appear to have died of asphyxia about 36to 48 hours prior to autopsy. Ex.P.5 - hyoid bone report, revealed thatthere is no evidence of any ante-mortem injury or fracture in the hyoidbone except for the postmortem fracture of left greater horn.3.7. P.W.9 continuing with his investigation examined witnesses andrecorded their statements. He formed a special team to arrest theaccused. He recovered M.Os.3 and 4, clothings of the deceased and sentthe same for chemical examination. He thereafter questioned the officialwitnesses and recorded their statements. He obtained Exs.P.3 to P.7 andexamined the medical officers. Since the accused could not be arrestedafter a due search, the investigating officer filed absconding chargesheet against the accused on 31.10.1994 for the offence under Section302 I.P.C.3.8. After the case was committed to Court of Sessions, the accusedwas questioned and he denied his complicity. Hence, the trial commenced.To substantiate the charge against the appellant/accused, theprosecution examined 9 witnesses, marked 12 exhibits and produced 4material objects. On completion of evidence on the side of prosecution,the accused was questioned under Section 313 Cr.P.C. on theincriminating materials, for which the accused made a total denial.Neither any witness was examined nor any document was marked on hisside. 3.9. The trial Court, on scrutiny of materials placed and onhearing the arguments of both sides, found the appellant/accused guiltyof the charge of murder and accordingly, convicted and sentenced him asreferred to earlier. Hence, the present appeal.4.1. The learned counsel for the appellant/accused vigorouslycontended that the prosecution case rests on circumstantial evidence, asthe occurrence was not witnessed by any one and the circumstancesbrought out by the prosecution through the witnesses as regards the lastseen theory and the motive are not sufficient to bring home the guilt ofthe accused and the prosecution has miserably failed to establish allthe links in the chain of circumstances. 4.2. The learned counsel relying on the medical evidence contendedthat when the death of the deceased was due to strangulation, there mustbe a fracture to the hyoid bone, but as seen from Ex.P.5, the hyoid bonereport, it is clear that no fracture was found in the hyoid bone andhence, the case of the prosecution that the death was due tostrangulation is unbelievable and therefore, the appellant/accused isentitled for acquittal.5.1. On the other hand, learned Additional Public Prosecutorcontended that the prosecution has proved its case beyond all reasonabledoubts by a complete chain of circumstances, without any missing linksand hence, no interference is called for. https://hcservices.ecourts.gov.in/hcservices/

5.2. Countering the argument with regard to the report of hyoidbone, the learned Additional Public Prosecutor submitted that absence offracture on the hyoid bone itself would not lead to the conclusion thatthe deceased did not die of strangulation, as medical jurisprudencesuggests that only in a fraction of such cases, a fracture of hyoid boneis found.6. We heard the contentions of both sides and perused the entirematerials on record.7. It is not in dispute that the deceased Devaki died on accountof homicidal violence. Through the evidence of the doctor, P.W.5 andExs.P.3 to 5, post-mortem certificate, chemical analyst report and hyoidbone report, which revealed that the deceased died on account ofasphyxia, the prosecution established the fact of homicidal violence.Hence, we have no hesitation to hold that the death of the deceased wasdue to homicidal violence.8. Now, we have to consider whether the prosecution has proved theguilt of the accused beyond reasonable doubt? 9. The case rests solely on circumstantial evidence, as theoccurrence was not witnessed by one. It is well settled principle thatwhere a case rests squarely on circumstantial evidence, the inference ofguilt can be justified only when all the incriminating facts andcircumstances are found to be incompatible with the innocence of theaccused or the guilt of any other person. The circumstances from whichan inference as to the guilt of the accused is drawn have to be provedbeyond reasonable doubt and have to be shown to be closely connectedwith the principal fact sought to be inferred from those circumstances.Thus, it is clear that in a case of circumstantial evidence, four testsare to be satisfied and they are:(1) the circumstances from which an inference of guiltis sought to be drawn, must be cogently and firmlyestablished; (2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused;(3) the circumstances, taken cumulatively, should forma chain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else; and (4) the circumstantial evidence in order to sustainconviction must be complete and incapable ofexplanation of any other hypothesis than that of theguilt of the accused and such evidence should not onlybe consistent with the guilt of the accused but shouldbe inconsistent with his innocence. https://hcservices.ecourts.gov.in/hcservices/ vide Eradu v. State of Hyderabad (AIR 1956 SC 316), Hukam Singh v. Stateof 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 KumarChatterjee 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 abovetests and establishes all the links in the chain of circumstances. Theevidence of circumstances which the prosecution mainly relied upon isthe evidence of P.Ws.1 to 3, who saw the accused just before andimmediately after the occurrence and who speak about the previous aswell as immediate motive. 11.1. The first circumstance is with regard to the continuousquarrel between the accused and the deceased, which is projected asmotive for the occurrence. Though it is not necessary for theprosecution to establish the motive part of the occurrence in criminalcases, if there are eye witnesses to the occurrence, in the case ofcircumstantial evidence, motive plays a significant role to establishthe guilt of the accused. The motive as put forth in the instant caseis that the accused used to pick up frequent quarrels with the deceasedand also beat her unnecessarily. This is spoken to by Selvaraj, brotherof the deceased, who lodged the first information statement, Ex.P.6, inthe 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 ofP.W.1. 11.2. It is seen from the complaint, Ex.P.6, that though thedeceased married the accused knowing very well that he is alreadymarried to another woman and is having two children, there used to bequarrels between them and the accused was also in the habit of beatingher. Because of that, the deceased left the matrimonial home and wentback to her brother's house and stayed there. The accused visited herbrother's house and asked the deceased to come back, but she refused.Annoyed by that, the accused shouted at her and threatened her withlife. They were pacified by the brother of the deceased, Selvaraj.Even prior to the date of occurrence, the accused demanded the deceasedto accompany him to his house, for which the deceased declined. Theabove averments made in the complaint given by Selvaraj, brother of thedeceased, also corroborate with the evidence of P.W.1, who has spoken toon the same lines. 11.3. That apart, P.W.2, who is also a neighbour of Selvaraj, hasstated in her evidence that because of the first wife of the accused,there used to be frequent quarrels between the accused and the deceasedand the accused used to beat the deceased and hence, the deceased lefther matrimonial home and stayed in her brother's house and was eking herlivelihood doing coolie work. It is her further evidence that the https://hcservices.ecourts.gov.in/hcservices/ accused used to come to the work place of the deceased and ask thedeceased to return back, but as the deceased refused, he shouted at herand threatened her with life. 11.4. From the above evidence of P.Ws.1 and 2 as well as thecomplaint, Ex.P.6, given by Selvaraj, it is crystal clear that theaccused was pestering the deceased to return back to matrimonial homeand since the deceased was afraid of his conduct of threatening her withlife, refused to go along with him, which infuriated the accused to doaway her as he said earlier. Thus, the continuous quarrel reflects themotive for the accused to cause the death of the deceased.12. The next circumstance is the evidence with regard to immediatemotive. It is averred in the complaint that on the date of occurrencealso, there was a continuous quarrel between the couple from the morningas to the returning of the deceased to her matrimonial home and thatSelvaraj intervened and pacified them. P.W.1 also corroborates the saidaverment with regard to the immediate motive. It is the evidence ofP.W.2 that on that day, the accused came to the work place and demandedthe deceased to accompany him to his house and since she refused, heleft the place and went to the house of Selvaraj. As requested bySelvaraj, the accused stayed there at night and that Selvaraj pacifiedhim that the issue could be resolved on the next day. Thus, theprosecution has also proved the immediate motive for the occurrence. 13. The third circumstance is the last seen theory. As alreadystated, on the date of occurrence, the deceased was in the house ofSelvaraj, her brother and that the accused, who came there at about 9.00a.m., picked up a quarrel demanding the deceased to accompany him to hishouse, which was refused and the quarrel continued till night. As couldbe seen from the evidence of P.W.2 that after the accused shouted at thedeceased in the work place of the deceased, he left the place and thatwhen she returned from her work, she saw the accused talking withSelvaraj and P.W.1 in front of the house of Selvaraj. According toSelvaraj, the quarrel continued till night and it was he who pacifiedthe accused and requested him to stay there and that the issue could beresolved 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 heardthe distressing cries of the deceased and as the front door was foundlocked, they entered through the back door of the house and at thattime, the accused came out of the house and ran away. They went insideand saw the deceased lying dead. Thus, on the above clinchingcircumstances, we are of the confirmed opinion that the prosecution hassucceeded in establishing the last seen theory also. Moreover, it is anundisputed fact that the accused stayed that night with the deceased andhe offers no explanation for the death of the deceased, which itself anadditional link in the chain of circumstances as held by the Apex Courtin various decisions. Hence, from the above clinching circumstances, wecannot but hold that it was the accused and none else who wasresponsible for the death of the deceased. https://hcservices.ecourts.gov.in/hcservices/

14.1. The core contention of the learned counsel for the appellantis that when the hyoid bone report, Ex.P.5, showed that there is noevidence of any antemortem injury or fracture in the hyoid bone exceptfor the postmortem fracture of left greater horn, it would only disprovethe case of prosecution that the accused strangulated the deceased.According to the learned Counsel, fracture of hyoid bond is sine quo nonto show strangulation and they are inseparable twins.14.2. In this context it is relevant to refer to the recentdecision of the Apex Court in PONNUSAMY v. STATE OF TAMIL NADU, 2008AIR SCW 3184, whereunder their Lordships have referred Taylor'sPrinciples and Practice of Medical Jurisprudence, Thirteenth Edition;and Journal of Forensic Sciences, Volume 41 under the Title – Fractureof the Hyoid Bone in Strangulation : Comparison of Fractured andUnfractured Hyoids from Victims of Strangulation. The quintessence ofthe two books referred above is :(i) While the amount of force in manual strangulation wouldoften appear to be greatly in excess of that required to causedeath, the application of such force, as evidenced byextensive external and soft tissue injuries, make it unusualto find fractures of the hyoid bone in a person under the ageof 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 notmay relate to the nature and magnitude of force applied to theneck, age of the victim, nature of the instrument (ligature orhands) used to strangle, and intrinsic anatomic features ofthe hyoid bone.(iv) The age-dependency of hyoid fracture correlated with thedegree of ossification or fusion of the hyoid synchondroses.(v) The shape of the hyoid bone was also found todifferentiate fractured and unfractured hyoids. They hyoids ofstrangulation victims, with and without fracture, aredistinguished 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 ofdeath.14.3. Going by the above principles, if we analyze the presentcase, it goes beyond doubt that fracture of hyoid bone and strangulationare not directly connected. The deceased in the instant case was agedabout thirty years and the principle that it is unusual to findfractures of the hyoid bone in a person under the age of 40 years, sinkswell. Therefore, applying the above principles as enunciated by the Apex https://hcservices.ecourts.gov.in/hcservices/ Court in the decision supra, we have no hesitation to hold that thecontention of the learned Counsel for the Appellant does not hold good.In view of our foregoing conclusion, we cannot but hold that theprosecution has satisfied the tests as referred to above and proved theguilt of the accused beyond all reasonable doubt. Therefore, there isno reason to interfere with the well-founded judgment of the trial Courtand accordingly, the appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo1. 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.1 cc To Mr.C.S.Saravanan, Advocate, SR.28336.Crl.A.No.1099 of 2007 RA(CO)RVL 02.07.2008