Duraisamy v. Gnanasekaran & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 27.08.2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.R.C.No.12 of 2008Duraisamy ... Petitioner/ComplainantVersus1. Gnanasekaran2. State represented byThe Deputy Superintendent of PoliceDistrict Crime Branch, Erode.(Crime No.391/2006) ... Respondents/RespondentsCriminal revision filed under Section 397 and 401 Cr.P.C.,against the Judgment dated 20.09.2007 passed in S.C.No.68 of2007, on the file of the I Additional Sessions Judge, Erode,acquitting the first respondent for an offence under Section 498-A, 302, 201 and 203 of IPC.For Petitioner: Mr.S.Shankar for Mr.C.RamkumarFor Respondent: Mr.A.K.Kumarasamy for R.1. Mr.V.R.Balasubramaniam Additional Public Prosecutor for R.2ORDERThe first respondent herein was acquitted by the learned IAdditional Sessions Judge, Erode, in S.C.No.68 of 2007, from thecharges under Sections 498-A, 302, 201 and 203 of IPC.Challenging the said acquittal, the petitioner herein, father ofthe deceased who was examined as P.W.1 in this case has preferredthis criminal revision.2. The case of the prosecution in brief is that thedeceased Kalaiselvi is the daughter of P.W.1 and sister of P.W.2.About 14 years prior to the death of the deceased, the marriageof Kalaiselvi was performed with the accused who was working asa police constable. After the marriage, the deceased also gavebirth to two female children. Ten years after the marriage, theaccused developed a habit of consuming liquor and started toharass the deceased. The accused used to assault the deceasedand one such time, her tooth was broken. Both the accused and https://hcservices.ecourts.gov.in/hcservices/ the deceased was staying in the police quarters at Perundurai.P.Ws.4 and 5 are the neighbours who were also staying in thepolice quarters. On 29.06.2006, at about 8.00a.m., P.Ws.3 and 4were taking water from the public water tank. The deceased alsocame to take water from the tank. Then the accused came out ofthe house in an angry mood saying "that he would come and see thedeceased". As P.Ws.3 and 4 already heard the noise inside thehouse, they enquired the deceased and the deceased informed thatthe accused was quarrelling with her. At about 10.45 a.m., P.W.2brother of the deceased came to her house. The deceased informedP.W.2 that he was assaulted by her husband – accused. P.W.2thereafter went and informed about this to his father P.W.1. Atabout 12.30p.m., the accused returned to his house. Then onhearing noise, P.W.4 and others went to the house of the accusedand they were informed by the accused that his wife had committeesuicide by hanging. P.W.4 and others went and saw the body ofthe deceased on the floor. P.W.3 who came to the house of thedeceased informed P.W.1 over the phone about the death of thedeceased. P.W.1 came to the house of the accused. P.W.1 saw acontusion on the right hand of the deceased and another injury onthe left side of the head and also saw blood oozing out from theear. The food materials were strewn around the kitchen. Hefound the cooker was filled cooked rice. He also saw brokenpieces of glass bangles around the place of occurrence. He wentto the police station and gave complaint Ex.P.1. P.W.24,Inspector of Police on receipt of the complaint Ex.P.1,registered a case in Crime No.391 of 2006, for the offence underSection 498-A and 306 IPC and prepared the First InformationReport Ex.P.25.3. P.W.27, Inspector of Police took up the investigation andwent to the scene of occurrence and prepared the observationmahazar and rough sketch. He also recovered a Torn nylon sareewhich was lying in the floor and other portion of saree which washanging from the roof. He held inquest over the body of thedeceased and recorded the statement of witnesses and preparedthe inquest report Ex.P.13. Then he sent the body for postmortem examination. On the same day at 9.00p.m., he arrestedthe accused who was standing in the bus stand and sent him tothe hospital for medical treatment and for getting thedrunkenness certificate.4. On 30.06.2006, P.W.15 Doctor conducted autopsy on thebody of the deceased and found the following external injuries:i)Contusion around the neck which measured 3 cms.ii)Ligature mark around the neck.iii)The skin around the neck was removed for furtherexamination.iv)Blood clot at the front portion of thyroid cartilage.v)Oozing of blood through the left ear.vi)A contusion measuring 4 x 3 cms on the left temporalregion.vii)When it was dissected, blood clot was found beneath.viii)A contusion measuring 8 x 5 cms at the right elbow.ix)An abrasion measuring 6 x 2 cms just above the injury https://hcservices.ecourts.gov.in/hcservices/ No.8.x)Abrasions measuring 1 x 1 cm at the back of right hand.Abrasion measuring 2 x 2 cm on the left elbow."The Doctor found that the hyoid bone was not broken and there wasblood stains around the neck. The Doctor concluded that the deathof the victim was due to strangulation. He issued post mortemcertificate Ex.P.8 and final report Ex.P.9. 5. The Investigation Officer sent an alteration report tothe court altering the penal provisions from 498(A) and 306 IPCto Sections 498(A), 302, 201 and 203 IPC. The alteration reportis Ex.P.37.6. P.W.28 Inspector of Police took up further investigationand after completing the investigation, he laid the final reportagainst the accused.7. In order to establish the case, the prosecution hasexamined P.Ws.1 to 20, marked Exs.P.1 to P.34, produced materialobjects M.Os.1 to 8. When the accused was questioned underSection 313 Cr.P.C, he denied his complicity. He also filed awritten statement. In the written statement, the accused hadstated that he returned to the house on 29.06.2006 at about12.00noon. At that time, he saw the crowd in the house. Insidethe house he saw the deceased lying dead. The jewels which shewas wearing was missing. He informed this over phone and thepolice came and enquired. In the mean time, his father-in-lawP.W.1 and brother-in-law P.W.2 came there and they had givenfalse complaint against the accused. It is further stated thatPW.4 Pushparani, P.W.5 Chandrakala and one Usha did not come tohis house. It is further stated that the accused was not in thehabit of drinking and he did not sustain any injury. The trialCourt after analysing the evidence, acquitted the accused fromall the charges. 8. The learned counsel appearing for the revisionpetitioner submitted that though the medical evidence let in bythe prosecution has established that the deceased had died due tohomicidal violence, the learned Judge has erroneously held thatthe evidence of the Doctor had been diluted in the crossexamination. The learned Judge observed that the Doctor hasgiven a strong evidence in the Chief Examination in support ofthe prosecution, but diluted when he was cross examined by thedefence witnesses. The learned counsel also pointed out from theevidence that the opinion of the Doctor has not been diluted inthe cross examination. The learned counsel for the petitionerfurther submitted that P.Ws.4 and 5, the neighbours who areladies have clearly deposed that at the time of occurrence, theaccused was available in the house. But he had filed a falsewritten statement stating that he was not available in the houseand falsely stated that the jewels of the deceased were missing.9. The learned Additional Public Prosecutor submitted that https://hcservices.ecourts.gov.in/hcservices/ after the arrest, the accused was taken to the hospital and theDoctor-P.W.17 who examined him found injuries on the accused.The accident register is marked as Ex.P.13 and before the Doctor,the accused had admitted that the was at his resident at about11.00a.m., and he sustained injuries by the hands of thedeceased. 10. Per contra, learned counsel appearing for the firstrespondent/accused submitted that there is no direct eye-witnessto the occurrence and the circumstances let in by the prosecutiondo not lead to the guilt of the accused. The opinion of theDoctor that the deceased died due to strangulation has beenshattered in the cross examination by the defence. The learnedcounsel appearing for the first respondent submitted that it isunsafe to rely on the evidence of the Doctor and to conclude thatthis is a case of homicidal death. The learned counsel for therespondent/first accused further submitted that there was nomotive for the accused to murder the deceased and even P.Ws.4 and5 admitted that there was only a wordy quarrel among the accusedand the deceased. The learned counsel for the petitioner furthersubmitted that P.Ws.4 and 5 though were available at the time ofinquest, they have not been examined during inquest and theirstatements were not recorded at that time and they weresubsequently shown as witnesses. Though they were said to havebeen examined on the same day of the inquest the statementsreached the court only on 31.06.2006 and there is no explanationfor the delay.11. The learned counsel for the respondent pointed out thatthe hyoid bone was not fractured and there was no fracture oflarynx and Trechea and there was no rupture of Carotid Artery.There was no fracture of Thyroid cartilage and the death was moreprobable by suicide. 12. The learned counsel for the respondent further submittedthat the version of the accused given in the written statementshould be accepted and no jewels were found in the body of thedeceased and the evidence of P.W.9, that the jewels were removedis not acceptable one. The learned counsel for the respondentfurther added that there is no manifest illegality in theJudgment of the trial Court and no inference should be madeerroneously and he also relied on the decision of the HonourableSupreme Court reported in 2008(3) SCC 423 (Johar and others vs.Mangal Prasad and another). 13. The learned Additional Public Prosecutor pointed outthat in the photograph of the dead body, two bangles and earrings were found and the Investigation Officer had admitted thatthose jewels were removed with his permission. 14. This Court considered the submission made by all theparties and perused the records. 15. There is no eye-witness to the occurrence and the caserests upon the circumstantial evidence. The circumstances let in https://hcservices.ecourts.gov.in/hcservices/ by the prosecution against the accused are:(i) The accused often used to assault his wife/the deceasedin a drunken mood. (ii) On the date of occurrence, in the morning there was aquarrel between the accused and the deceased and the deceased wasassaulted by the accused.(iii) The accused went inside the accuse. P.W.3 and P.W.4heard the noise and the accused came out of the house andinformed them that his wife committed suicide.(iv) The injuries were found on the accused and on thedeceased.(v) As per medical evidence, the deceased died due tohomicidal violence.16. As far as the first circumstance is concerned, as perthe evidence of P.Ws.1 to 5, and 7, the accused was in the habitof drinking and used to quarrel with his wife and assaulted her.P.Ws.1 and 2 are father and brother of the deceased. P.W.3 wasknown to P.W.1's family. P.Ws.4 and 5 are neighbours of theaccused and deceased and P.W.7 is the neighbour as well as friendof the accused. Therefore, the fact that the accused used toquarrel and assault his wife is established.17. Regarding the second circumstance, P.W.2 brother of thedeceased who came to the house of the deceased at 10.45 a.m., wasinformed by the deceased that she was assaulted by the accusedand in turn it was also informed to his father. P.Ws.4 and 5ladies who are neighbours heard the noise from the house of theaccused and when the deceased came outside of the house at about8.30a.m., to fetch water from the water tap, P.Ws.4 and 5 haveenquired her and they were informed that her husband wasquarrelling with her. Therefore, the second circumstance alsohas been established by the prosecution. 18. With regard to the third circumstance, it is theevidence of P.Ws.4 and 5 at about 10.45 a.m., or 11.00a.m., thedeceased once again came to fetch water from the tap and sheinformed P.Ws.4 and 5 that she would again come back and takemore water. But she did not come out again. The accused enteredinto the house and thereafter P.Ws.4 and 5 heard the noise fromthe house. After some time, the accused came out from the houseand informed them that the deceased had committed suicide. Thisevidence of Pws.4 and 5 established the fact that at the time ofoccurrence, the deceased was present in the house. After thenoise was heard by P.Ws.4 and 5, from the house of the deceasedand the accused, neither the deceased nor the accused came out ofthe house and both of them had been inside the house. Only afterthe accused himself came out of the house and informed P.Ws.4 and5 that the deceased had committed suicide, they went inside andsaw the deceased lying inside the room. P.Ws.4 and 5 tried togive water to the deceased, but it was not possible as thedeceased died already.19. Though the accused had denied his presence in the house https://hcservices.ecourts.gov.in/hcservices/ at the relevant time and he had stated that he is returned to thehouse at 12.00 noon, he saw the crowd and found the deceasedlying dead, the version of the accused is not acceptable. Theevidence of P.Ws.4 and 5 is very natural and they are ladies whoare residing nearby the house of the deceased and they had noanimosity to depose falsely against the accused. Of course, theywere not examined during the inquest and their statements wererecorded belatedly, but it cannot be a reason for rejecting theevidence of P.Ws.4 and 5. Therefore, the presence of the accusedat the relevant point of time in the house is also established bythe prosecution.20. When the above said circumstance was put to the accusedunder Section 313 Cr.P.C., the accused instead of making anattempt to explain or to clarify the incriminating circumstanceagainst him, he had totally denied and also filed a writtenstatement to that effect with some more inconsistent version. Inthe written statement, the accused also stated that the jewels ofthe deceased were missing. As per the evidence, some of thejewels have been removed before the arrival of the police. As itis within the knowledge of the accused as to what happened insidethe house, it is his duty to explain as per Section 106 of theIndian Evidence Act, which reads as follows:"106. Burden of proving fact especiallywithin knowledge:- When any fact is especiallywithin the knowledge of any person, the burden ofproving that fact is upon him."21. In a case of circumstantial evidence, from the falsityof the defence plea and false answers given to court when theaccused was questioned, the Court may take it as an additionalincriminating circumstance against the accused and it would beone more link in the chain of circumstances.22. The important circumstance that the accused was presentin the house at the relevant time being established by theprosecution, if it is further established by the prosecution thatthe deceased died due to homicidal violence, then all thecircumstances earlier pointed out would lead only to the guilt ofthe accused and nothing else. On the other hand, if it is notpossible to establish that the deceased died due to homicidalviolence, then it would be difficult, even though all thecircumstances earlier mentioned one held to be proved, to holdthat the accused committed homicidal violence. Therefore allthe other circumstances being established, now whole case restsupon the medical evidence. 23. Before discussing regarding medical evidence, it ispertinent to point out at this stage certain facts from the oralevidence of the prosecution case. This Court accepted theevidence of P.Ws.4 and 5. It is their evidence that they were https://hcservices.ecourts.gov.in/hcservices/ informed by the accused that the deceased had committed suicideby hanging. When P.Ws.4 and 5 entered into the house, they foundthe body of the deceased which was already brought down. As perthe observation mahazar also half of the saree was pendentconnected to the roof. The other piece of the saree was on thefloor. As per column 9 and 15 of the inquest report, the accusedhimself had cut the saree and brought down the deceased. It isthe evidence of P.W.1, father of the deceased that after gettinginformation, when he went into the house of the deceased, he sawthe accused being present there.24. As per Ex.P.8, post mortem report by P.W.15 Doctor, theinjuries found on the body of the deceased are as follows:External Injuries:- i) Contusion around the neck which measured 3 cms.ii) Ligature mark around the neck.Iii)The skin around the neck was removed for furtherexaminationiv) Blood clot at the front portion of thyroidcartilage.v) Oozing of blood through the left ear.vi) A contusion measuring 4 x 3 cms on the lefttemporal region.Vii)When it was dissected, blood clot was foundbeneath.Viii)A contusion measuring 8 x 5 cms at the rightelbow.ix)An abrasion measuring 6 x 2 cms just above theinjury No.8.x)Abrasions measuring 1 x 1 cm at the back of righthand. Abrasion measuring 2 x 2 cm on the left elbow."Internal Injuries:Heart 200 grams congested. C/s empty. Lungright 400 grams left 350 grams. Both lungscongested. Hyoid bone preserved. Stomachcontained 300 ml of partially digested food. Liver1300 grams congested. Spleen 100 grams congested.Kidney's both 200 grams congested. Bladderempty. Uterus 50 grams c/s empty. Skull intact.Sub aponeurotic clot present at right parietalregion. Brain 1300 grams congested. Spinalcolumn intact. Sub conjunctional Haemorrhagepresent. Viscera and lung preserved.25. It is the definite opinion of the Doctor that thedeceased would appear to have died of violent ligaturecompression over the neck. In the cross examination, Doctor hadadmitted that there was no fracture of hyoid bone and fracture ofLarynx and Trachea was not there and there is possibility ofThyroid cartilage being broken in case of strangulation. https://hcservices.ecourts.gov.in/hcservices/

26. In the Modi's Medical Jurisprudence and Toxicology, 22ndEdition at Page No.270, the difference between hanging andstrangulation are given :HangingStrangulation1Mostly suicidal.Mostly homicidal.2Face – Usually pale andpetechiae rare.Face – Congested, livid andmarked with petechiae.3Saliva – Dribbling out of themouth down on the chin andchest.Saliva – No such dribbling.4Neck – Stretched and elongatedin fresh bodiesNeck – Not so5External signs of asphyxia,usually not well markedExternal sings of asphyxia,very well marked (minimalif death due to vasovagaland carotio sinus effect).6Bleeding from the nose, mouthand ears very rare.Bleeding from the nose,mouth and ears may befound.7Ligature mark – Oblique, noncontinuous placed high up in theneck between the chin and thelarynx, the base of the grooveor furrow being hard, yellow andparchment -like.Ligature mark – Horizontalon transverse continuous,round the neck, low down inthe neck below the thyroid,the base of the groove orfurrow being soft andreddish.8Abrasions and ecchymoses roundabout the edges of the ligaturemark, rare.Abrasions and ecchymosesround about the edges ofthe ligature mark, common.9Subcutaneous tissues under themark – White, hard andglistening.Subcutaneous tissues underthe mark – Ecchymosed.10Injury to the muscles of theneck – Rare.Injury to the muscles ofthe neck – Common11Carotid arteries, internal coatsruptured in violent cases of along drop.Carotid arteries, internalcoats ordinarily ruptured.12Fracture of the larynx andtrachea – Very rare and that tooin judicial hanging.Fracture of the larynx andtrachea – Often found alsohyoid bone.13Fracture – dislocation of thecervical vertebrae – Common injudicial hanging.Fracture – dislocation ofthe cervical vertebrae –Rare. https://hcservices.ecourts.gov.in/hcservices/ HangingStrangulation14Scratches, abrasions and bruiseson the face, neck and otherparts of the body – Usually notpresentScratches, abrasionsfingernail marks andbruises on the face neckand other parts of the body– Usually present.15No evidence of sexual assaultSometimes evidence ofsexual assault.16Emphysematous bullae on thesurface of the lungs – Notpresent.Emphysematous bullae on thesurface of the lungs – Maybe present.As per the above differences, there was bleeding from the earsand there were injuries on the face and ecchymoses was found.As sub conjunctional haemorrhage was present, the Doctor hasopined it is a case of homicidal violence. But at the same time,most of the symptom for strangulation were not found such asfracture of the larynx and trachea hyoid bone also was notfractured. Fracture or dislocation of the cervical vertebrae wasabsent. Though on probabilities, the medical evidence suggestsmore for strangulation than for hanging, unless the court is ableto conclude definitely from the medical report of the Doctor,it is a case of only homicidal death and not suicidal death, itwould be very unsafe to convict the accused relying on suchmedical evidence. Of course, there may be cases wheremedical opinion is taken as corroborative evidence forconvicting, but in cases where the whole case rests mainly on themedical opinion, it is the duty of the court before relying onsuch medical evidence to make it sure that no other contraryopinion is possible. Always it is the principle that benefit ofdoubt must be given to the accused at every stage. Further thiscase being the revision against acquittal, this Court does notwant to remand back the matter to the trial Court wherein onceagain it will be difficult for the trial court to concludewhether the death of the deceased is due to homicidal violence ornot. The injuries sustained by the accused also can be taken asa circumstance only if the death of the deceased is establishedas homicidal violence, otherwise may be those injuries could havebeen sustained at the time of quarrelling both the accused anddeceased as stated by him before the Doctor. 27. Further from the available occular evidence and othermaterials, this court feels that it is more suggestive it is acase of suicide, though the accused had denied his presence inthe house at the time of occurrence. As per the availablematerials and according to the prosecution it was only theaccused who had cut the saree and brought down the deceased whowas hanging. From the photos and observation mahazar, it couldbe seen the saree which was used for hanging had been cut intotwo pieces. If the accused had strangulated the deceased, afterstrangulation, in order to show it is a case of suicide, hewould not have cut the saree into two pieces. https://hcservices.ecourts.gov.in/hcservices/

28. Regarding the charge under Section 498-A IPC, this Courtdoes not want to reappraise the evidence. The accused and thedeceased lived as husband and wife for more than 10 years.29. In the result, the criminal revision petition isdismissed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksrTo1.The First Additional Sessions Judge, Erode.2.The Deputy Superintendent of Police, District Crime Branch,Erode.3.The Public Prosecutor, High Court, Madras.+1cc to Mr.C.Ramkumar, Advocate Sr 63653+1cc to Mr.A.K.Kumarasamy, Advocate Sr 63578MRD(CO)km/3.9.CRL.R.C.No.12 of 2008