BaskaranS/o Kumarasamy v. State represeted by Inspector of PoliceMalasamuthiram Police Station(Crime No.80 of 2005)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.02.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.947 of 2006BaskaranS/o Kumarasamy ....Appellant/Accused.-vs-State represeted by Inspector of PoliceMalasamuthiram Police Station(Crime No.80 of 2005).....Respondent/Complainant.Memorandum of Grounds of Criminal Appeal under Section 374(2)of the Criminal Procedure Code against the judgment dated24.05.2006 made in S.C.No.15 of 2006 on the file of the learnedAdditional Sessions Judge, Fast Track Court, Nakakkal.For Appellant::M/s.V.Muthukumaraswamy and A.T.ChandrasekaranFor Respondent::Mr.P.Kumaresan Addl. Public Prosecutor ( Judgment of the Court was delivered by V.PERIYA KARUPPIAH,J. )The appeal is directed against the judgment of conviction andsentence passed against the sole accused by the learned AdditionalSessions Judge, Fast Track Court, Namakkal in S.C.No.15 of 2006. Hewas convicted under Section 302 of I.P.C. and sentenced to undergoimprisonment for life and to pay a fine of Rs.10,000/- in defaultto suffer simple imprisonment for 6 (six) months for the offenceunder Sec.302 of I.P.C. 2. The case of the prosecution as put forth before thetrial court is as follows:-P.W.1 is the father of the deceased by name Kasthuri andP.W.2 is the mother. Accused is the husband of the deceased.The accused married the deceased on 21.02.2005. At the time ofmarriage she was provided ½ sovereign gold stud, ¼ sovereign nose-screw and anklet. The accused was also provided ½ sovereign of https://hcservices.ecourts.gov.in/hcservices/ ring. The deceased died within 35 days of her marriage. On hearingthe news that their daughter was found dead, P.W.1 rushed toMorepalayam Village along with his family where he found hisdaughter dead and blood was oozing out from the nose. On enquiry,he came to know that there was quarrel between the deceased and theaccused and on the next morning at about 5.00 a.m. The accusedinformed his paternal uncle and asked him to come see. P.W.1thereafter, lodged Complaint, Ex.P.1 to P.W.12 Sub Inspector ofPolice, Mallasamudhiram Police Station, prepared Express F.I.R.,Ex.P.10, sent the original to the concerned Magistrate and copiesto his higher officials through Head Constable, P.W10. 3. P.W.15 the Revenue Divisional Officer on receipt of copyof F.I.R., visited the scene of occurrence, conducted inquest onthe body of the deceased prepared a report, examined witnesses andthe accused and recorded their statements, Ex.p.15 (series) andthereafter prepared inquest report, Ex.P.14 . P.W.16 who took upfurther investigation, rushed to the scene of occurrence, atabout6.00 a.m., on 27.03.2005 in the presence of P.W.14, theVillage Administrate Officer and one Thangaraj, drew rough sketch,Ex.P.17, prepared observation mahazar,Ex.P.10, recovered, a pair ofanklet, M.O.1, a pair of of toe ring,M.O.4, a pair of coveringstud, M.O.6 and covering nose-screw, M.O.8 from the person of thedeceased, under the cover of the mahazar, Ex.P.11 in the presenceof the witnesses. M.O.2 is the thali and a pair of ear stud isM.O.5 which were worn by the deceased. P.W.15, the RevenueDivisional Officer gave a request to the Doctor, P.W.7 forconducting postmortem on the body of Kasthuri.4. Upon identification and at on the basis of the request,Ex.P.6 from the Revenue Divisional Officer, Medical Officer, P.W.7attached to Thiruchengode Government Hospital conducted autopsyon the body of the deceased and found the following features:-External examination:-Body of a moderately nourished female, lyign onits back, face congested with bluishdiscolouration of skin, eyes opened, eye ballsprotruding out, mouth opened, teeth complete innumber, tongue partially protruding out. Blisterspresent over the chest wall and abdomen. Faecalstaining of anal orifices is seen. Frothing ofnostrils is seen.Internal Examination:-1. Skull-intact2. Brain liquified condition with 1400 grams3. Hyoid bone-intact4. Heart with 200 grams intact, chambers empty. Heart is congested.5. Lungs d- right lung 400gram and left lung 375 grams congested. Tardien's spots seen over the under surface of pleura. https://hcservices.ecourts.gov.in/hcservices/

6. Thorax -intact. Ribs intact.7. Liver - congested with 1400 grams8. Spleen - contested with 180 grams intact.9. Kidneys - 200 grams each, intact. Congested.10.Stomach consists of 150 ml of undigested food particles.11.Bladder – empty.12.Uterus is of normal size and congested. Intact. Cavity empty.Post-mortem Certificate issued by the Doctor, P.W.7 to above effectis Ex.P.7. He preserved the viscera for chemical analysis. Duringchemical analysis, no poisonous substance was detected in any ofthe viscera. Toxicology Report is Ex.P.5. On receipt ofToxicology Report, Ex.P.15, Doctor, P.W.7 has opined that thedeceased would appear to have died of asphyxia due to smothering 36to 48 hours prior to the death and issued his his final opinion,Ex.P.8 to that effect.5. Thereafter, as the preliminary investigation revealedthat it was the case of murder, P.W.16, the Deputy Superintendentof Police transferred the investigation to the Inspector of Police,P.W.18 for further investigation. Then, P.W.18 Inspector ofPolice, took up further investigation from the point where theDeputy Superintendent of Police left the investigation. He alteredthe offence to one under Section 302 of I.P.C., sent the expressalteration report to the Judicial Magistrate concerned. He examinedthe witnesses. At about 9.00 a.m., on 29.03.2005, he arrested thataccused near Morepalayam bus stand, recorded his voluntaryconfession in the presence of P.W.14 and another, pursuant to theadmissible confessional statement of the accused, Ex.P.12 he rushedto the house of the accused at about 11.00 a.m. Where the accusedhanded over Green colour designed mat, M.O.7; hammer, M.O.15;brown coloured bed-sheet, M.O.14; stainless tumbler, M.O.13; andalso gold stud (studded with a stone), M.O.5; ½ sovereign goldtalisman, M.O.3 (series); ¼ sovereign gold thali pottu,M.O.2; and 5gram sleeping pills (series), M.O.16 under the cover of the mahazarEx.P.13. He examined the attesting witnesses and recorded theirstatement. Thereafter, at about 11.30 a.m. He further recoveredthe legs of the cot, M.O.17 and nylon tape M.O.18, measuring about200 feet knitted in the cot under the cover mahazar, Ex.P.20 inthe presence of the very same attesting witnesses under the coverof mahazar. Then, he sent the material objects to the court.Thereafter, he examined the formal witnesses and recorded theirstatement. P.W.18, upon completion of his investigation and afterhaving perused the records, laid the final report on 06.06.2005 asagainst the sole accused for the offence punishable under Sec.302of IPC for having murdered his wife. https://hcservices.ecourts.gov.in/hcservices/

6. In order to substantiate the charges, prosecution hasexamined 18 witnesses and marked 20 exhibits and produced 18material objects. 7. When the accused was questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst him, he totally denied them as false. On behalf of thedefence, no document was marked and no witness was examined.However, learned trial Judge found the accused guilty of theoffence, convicted and sentenced him as stated earlier.8. The trial Court had after a full-fledged trial come to aconclusion to convict accused under Sec.302 of I.P.C. and theaccused was sentenced to imprisonment and to pay fine asaforesaid.9. Mr.V.Muthukumarasamy, learned counsel for theappellant/accused would submit in his argument that the trialCourt had come to a wrong conclusion without perusing the evidenceand without any evidence. The trial Court did not appreciate thecase since the case is based upon the circumstantial evidence andthe prosecution has not proved proved all the links of chains tohold the accused was guilty for the offence. He would furthersubmit in his argument that the deceased was suffering from highblood pressure and recently before her death she suffered anelectricity shock and due to the said illness, she would havedied of high blood pressure. He would also submit in his argumentthat the prosecution did not also prove the factum of purchasingsleeping pills and the medical shop from which the same wereallegedly purchased by the accused, so as to commit the murder ofhis wife. He would further submit that there was no motive forthe accused to commit murder and the evidence of the neighbourswould also show that there was no necessity for the accused tocommit murder of his wife within a period 35 days of theirmarriage.10. The learned counsel for the appellant would draw ourattention to the medical evidence in which the Doctor, P.W.7 hasopined that no blood was oozing out from the nose andtherefore, the cause of the death would be due to high bloodpressure. Therefore, he had submitted in his argument that thethe prosecution has not proved the circumstances in chain withoutany missing link and as such judgment of conviction recorded bythe trial Court solely depending upon the circumstantial evidencewhich has not been proved by the prosecution that the accused isguilty for the offence of murder under Section 302 of I.P.C. isliable to be set aside and the appellant be acquitted from thecharge of murder.11. Mr.P.Kumaresan, learned Additional Public Prosecutor wouldsubmit in his argument that the accused had married the deceased 35days prior to the occurrence and there was dispute of selling thejewels belonged to the deceased person and the accused was https://hcservices.ecourts.gov.in/hcservices/ pestering upon the deceased for getting more jewels from herparents house for the purpose of his expenditure and thereby he hadharassed the deceased. He would further submit that theculmination of the harassment had led to the commission of themurder of the deceased as she had refused to part with her jewelsas demanded by the accused. He would also submit in his argumentthat the medical evidence would clinchingly show that the deceasedby name Kasthuri died due to asphyxia caused by smothering, whenshe was in asleep on the fateful night. He had also drawnattention of the court that the face of the deceased was foundbluish at the time of her death that this would also a symptom formurder and the death was caused only by asphyxia and not due tohigh blood pressure. He would further submit in his argument thatthe cause of death as pleaded by the learned counsel for theappellant is a farce one and the medical evidence did not supportthe case of the defence. He had also drawn our attention to theevidence of P.Ws. 1, 2 and 4 to the fact that the relationshipbetween the accused and the deceased was strained due to the factthat the accused had been pestering for jewels for his extravagantexpenses. Therefore, he finally submitted that the judgment of thetrial court convicting and sentencing the accused for the offenceunder Section 302 of I.P.C. is perfectly alright and it requiresno interference. 12. We have given our anxious consideration to the argumentsadvanced on either side. In order to substantiate its case,theprosecution has examined P.Ws.1 to 18 and adduced Exs.P.1 to 20 andproduced M.Os.1 to 18. the evidence of of P.Ws.1, 2 and 4 would goto show that the accused had married the deceased on 21.02.2005 onan arranged marriage. P.W.4 was the marriage broker for theconclusion of the marriage in between the accused and the deceased.At the time of marriage ½ sovereign stud, ¼ sovereign of nose-screwand anklets were gifted to the deceased and apart from that a ½sovereign ring was given to the accused. It is also spoken to bythe witnesses that after the lapse of 35 days, when they wereleading marital life in a separate residence, the deceased wasfound dead in the morning and the same was reported to the police.The evidence of P.W.1 would show that when he went and visited hisdeceased daughter, he found that there was some blood oozing outfrom her mouth and the jewellery which were given to her were notfound on her person. On the other hand, he found that she waswearing covering studs on her person. Further, the evidence wouldgo to show that on the said night, the accused and the deceasedwere alone sleeping in the house and the accused had asked hisjunior paternal uncle to come and see that his wife was found deadand thereafter, only on hearing the news through the neighbours,the mother of the deceased came to the scene of occurrence. Theaccused did not complain the same to the police. Therefore, P.W.1doubted the accused. P.W.2 is the mother of the deceased and thewife of P.W.1. The evidence of P.W.1 and P.W.4 would alsocorroborate by the evidence of P.W.2. Apart from these witnesses,P.Ws.5 and 6 who are neighbours would go a long way to show thatafter the marriage between the accused and the deceased, they were https://hcservices.ecourts.gov.in/hcservices/ living in a separate residence at Morepalayam Village and theaccused always used to quarrel with the deceased and on the fatefulday, P.W.4 was informed by the accused that the deceased did notwake up in morning and the accused asked him to come over and seethe deceased immediately and on such information P.W.4 rushed tothe house of the accused and found the deceased Kasthuri dead andthereafter, he passed on the information to the parents of thedeceased Kasthuri. His evidence would go a long way to show thatthere were frequent quarrel in between the accused and thedeceased immediately after the marriage at their separate residenceat Morepalayam. The cause for the quarrel would be that theaccused used to demand the jewellery worn by the deceased for hisexpenditure and the deceased had already parted with her jewels andas the accused was demanding more, the deceased refused to partwith her remaining jewels. The available evidence would go a longway to show that the accused and the deceased were sleeping aloneon the fateful night at their house, where both of them wereliving. The medical evidence examined by the prosecution throughDoctor, P.W.7 who had conducted autopsy on the deceased Kasthuricoupled with Postmortem Certificate, Ex.P.7 and final opinionEx.P.8 would reveal that the cause of death of the deceased wasdue to asphyxia by smothering. 13. On a careful perusal of the evidence of Doctor, P.W.7coupled with Ex.P.7 and P.8 we could see, that the death of thedeceased would have been due to asphyxia caused by smothering. Itis also seen that the face of the deceased was found bluish and thesaid change in the face would also lead to a decision that thedeceased was dead due to asphyxia. Therefore, we could see that theargument of the learned counsel for the appellant/accused that thedeath of the deceased would have been caused due to high bloodpressure or due to illness due to the electric shock which she hadsuffered just a 2 – 3 weeks back prior to her death has no forceat all. It is settled a law that the opinion of the medicalexpert can be taken as a conclusive proof when the circumstanceswould go to show that the accused should be fastened with thecriminality. It is true that the accused and the deceased weresleeping together on the fateful night i.e. On 26.03.2005. Thedeceased was found dead on the next morning and the cause for thedeath was due to asphyxia by smothering. This would heavily castthe burden upon the accused to explain as to how he is not liablefrom criminality and the charge framed against him. Theexplanation offered by the accused that the death would have beencaused by high blood pressure or illness suffered by her due toelectric shock received by her just 2 - 3 weeks prior to theoccurrence was ruled out by the medical evidence.14. Therefore, the judgment of Apex Court reported in AIR1980 Supreme Court 531 Murarilal Vs. State of Madhya Pradesh isapplicable to the present case. The relevant passage is extractedbelow:- https://hcservices.ecourts.gov.in/hcservices/ "We are firmly of the opinion that there is no ruleof law, nor any rule of prudence which hascrystallised into a rule of law, that opinionevidence of a handwriting expert must never be actedupon, unless substantially corroborated. But, havedue regard to the imperfect nature of the science ofidentification of handwriting, the approach, as weindicated earlier, should be one of caution. Reasonsfor the opinion must be carefully probed andexamined. All other relevant evidence must beconsidered. In appropriate cases, corroboration maybe sought. In cases where the reasons for theopinion are convincing and there is no reliableevidence throwing a doubt, the uncorroboratedtestimony of an handwriting expert may be accepted.There cannot be any inflexible rule on a matterwhich, in the ultimate analysis, is no more than aquestion of testimonial weight. We have said so muchbecause this is an argument frequently met with insubordinate courts and sentences torn out of contextfrom the judgments of this Court are oftenflaunted."15. For all the above reasons, we are not in agreement withany of the submissions made by the learned counsel for theappellant/accused in challenging the judgment of conviction andsentence. On a over all consideration of the evidence and thecumulative circumstances in the present case we are of theconsidered view that the finding of the trial Court that theaccused is guilty of commission of murder of his wife does notrequire any interference. The appeal fails and the conviction andsentence passed by the learned Additional Sessions Judge, FastTract Court, Namakkal in S.C.No.15 of 2006 dated 24.05.2006 areconfirmed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. kmk https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District Sessions Judge, Fast Track Court, Namakkal2. -do- thru' the Principal District Judge, Namakkal3. The Superintendent, Central Prison, Coimbatore4. The District Collector, Namakkal5. The Director General of Police, Chennai6. The Public Prosecutor, High Court, Madras7. The Inspector of Police, Melasamuthiram Police Station, Namakkal District. + 1 CC To Mr. V.Muthukumarasamy, Advocate SR NO.16258Crl.A.No.947 of 2006asm[co]gp/19.3.