BAIL SLIP The Appellant/Accused viz., Kannan @ Kithiyon Alexander was already released on Bail in and by the Order of this Court dated.09.1.2008 and made in Crl.M.P.No.1 of 2007 in Crl.A.No.1086 of 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.1086 of 2007 Kannan @ Kithiyon Alexander .. Appellant/accused vs State represented by The Inspector of Police D-2 SRMC Police Station Greater Chennai Crime No.440 of 2004. .. Respondent/Complainant Criminal appeal under Sec.374(2) of the Code of Criminal Procedure 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 Ali For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Thiruvallur, made in S.C.No.49 of 2006 whereby the appellant/sole accused stood charged under Sections 498-A and 302 of IPC and on trial, found guilty as per the charges and awarded three years Rigorous Imprisonment along with a fine of Rs.1000/- and default 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 can be stated thus: (a) P.W.1 is the brother; P.W.2 is the mother; P.W.3 is the father and P.Ws.4 and 5 are the sisters of the deceased Bharathi Salomi. The appellant and the deceased married following a love affair, and they were living at No.2/234, Subbaiah Nagar, Iyyappanthangal, within the jurisdiction of the respondent police station. There were occasions in which the deceased informed to P.Ws.1 to 5 that the accused was treating her with cruelty and demanding 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 due to cardiac arrest. On receiving that information, P.Ws.1 to 5 rushed to the house of the accused and found the dead body. Immediately they took the deceased to SRMC Hospital where one Doctor by name Bharani was on duty. On medical examination, the Doctor informed them 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 station at about 9.00 A.M. and gave a report, Ex.P1, on the strength of which a case came to be registered by P.W.19, the Inspector of Police, in Crime 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 the Deputy Superintendent of Police, P.W.18, for investigation. (c) On receipt of the copy of the FIR, P.W.18 took up the matter for investigation, proceeded to the spot, made an inspection and prepared 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 hospital and prepared an observation mahazar, Ex.P18. Photographs were taken through P.W.10, photographer. M.Os.1 and 2 are photos and negatives respectively. A requisition was given to the Revenue Divisional Officer (RDO), Ponneri, who came over there and conducted inquest on the dead body. He has given an inquest report, Ex.P19. The RDO has conducted an enquiry and has given a report, Ex.P20. (d) Pursuant to the requisition given by the Investigating Officer, the dead body was subjected to postmortem by P.W.16, the Professor, Department of Forensic Medicine, Kilpauk Medical College, Chennai. The Doctor has given a postmortem certificate, Ex.P11, with his opinion that the deceased would appear to have died of Asphyxia due to ligature strangulation. (e) The investigation was continued by P.W.18. Following the medical opinion and the report of the RDO, he altered the case to Sections 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 further investigation on the direction of P.W.18. He examined the witnesses and recorded their statements. The statements of the witnesses were recorded by the Judicial Magistrate No.II, Poonamallee, under Sec.164 of 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. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 19 witnesses and also relied on 24 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellant guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.Shanmugavelayutham would submit that in the instant case, the prosecution had no direct evidence to offer; that P.Ws.1 to 5 are close relatives; that according to them, they received information as to the death of the deceased at 2.30 A.M., and they rushed there and came to know about the death; and that the prosecution rested its case on two circumstances firstly an extra- judicial confession alleged to have been made by the appellant to P.W.8 orally, and secondly the medical opinion that was canvassed through P.W.16, the Doctor, who conducted postmortem. 5.The learned Senior Counsel would further add that both the above evidence were actually shaky and should have been rejected outright by the trial Court; that as far as the extra-judicial confession was concerned, P.W.8 was the witness examined for that purpose; that according to him, he was actually a stranger to the accused; that there was no reason why the accused must go and make any confession before him; that further the occurrence, according to the prosecution, has taken place on 23.6.2004; but, according to P.W.8, the extra-judicial confession was made on 4.6.2004; that this would belie the evidence of P.W.8; that P.W.8 also added in his evidence 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, the evidence of P.W.8 has to be rejected. 6.The learned Senior Counsel has vehemently put forth his arguments as regards the medical opinion that was canvassed, that the evidence 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 at all; that the material on record would go to show that the hyoid bone of the deceased was in tact, and there was no external injuries found on the dead body of the deceased; that more particularly, the Doctor had opined that death could not have occurred due to homicidal violence; and that under the circumstances, the prosecution has miserably failed to prove the case. 7.The learned Senior Counsel further relied upon MODI's Medical Jurisprudence pointing to the differences what could be noticed between the case of strangulation and also hanging. The learned Senior Counsel pointed out that the medical opinion canvassed through P.W.16 was not in support of the prosecution, and hence he is entitled for acquittal in the hands of this Court. 8.The learned Senior Counsel further added that at the time of questioning under Sec.313 of Cr.P.C., the accused has categorically stated that on the evening hours of 22.6.2004, he left the house and he returned home only in the next morning, and thus he was actually absent during the night hours; that under the circumstances, no answer can be expected from him how such an occurrence has taken place during night hours; that the prosecution has miserably failed to prove its case and hence he was to be given the benefit of doubt. 9.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that the dead body of one Bharathi Salomi was taken to the hospital where she was medically examined by the Doctor who declared her dead, and the Doctor gave the accident register copy. Following the inquest made by the RDO, the dead body was subjected to postmortem by P.W.16, the Doctor, who has given his opinion that she died of asphyxia due to ligature strangulation. 11.It is not in controversy that the accused married the deceased 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 out of heart attack. At the outset, it remains to be stated that in a given case, where the husband and wife were living together and her death has occurred, one would naturally expect a responsible answer from the husband how the death was caused. In the case on hand, the defence plea before the trial Court and even before this Court was that the death was caused by commission of suicide by hanging. The occurrence has taken place at about 2.30 A.M. Now at this juncture, the learned Senior Counsel brought to the notice of the Court the statement given by the accused before the trial Court when he was questioned under Sec.313 of Cr.P.C. that he was absent during night hours 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 night hours; but, he happened to be absent that night. If to be so, for what purpose is not made known. Apart from this, it is pertinent to point out that the evidence of P.Ws.1 to 5 that they received the message as to the death of the lady at about 2.30 A.M. was never disputed by the appellant. Thus, it would be quite clear that the message was passed on by the accused. It is also quite evident that he was available in the house at 2.30 A.M. and further he informed them that death has occurred by cardiac arrest. All would go to show that he was very well available at the place, and it would also belie the statement made by him before the trial Court at the time of questioning under Sec.313 Cr.P.C. that he was away during that night hours, and he returned in the next morning. Thus it is contra to the defence theory. From the above, it would be quite clear that he was very well available during night hours when the occurrence has taken place. 12.The only question that arose for consideration under the stated circumstances would be whether it was a case where she died out of hanging or by way of strangulation. Now the medical opinion was canvassed through the postmortem Doctor. Apart from giving evidence before the Court, the Doctor has given the postmortem certificate wherein it is found "An complete ligature abrasion 29x3 cm seen over the Front sides and back of the neck below the thyroid cartilage on right side 8 cm below the mastoid process, 6 cms below the Left mastoid process and 8 cm below the chin. O/D Extensive Reddish sub cutaneous haemorrhage over front and sides of the neck, Reddish haemorrhage over Larynx and its mucosa surface." This would clearly indicate that there was a ligature mark which was found around the neck, and it was also complete. Now, at this juncture, it would be fit and proper to place on record the difference between hanging and strangulation as found in MODI's Medical Jurisprudence and Toxicology, 23rd Edition as follows: Hanging Strangulation 7.Ligature mark – Oblique, non- continuous placed high up in the neck between the chin and the larynx, the base of the groove or furrow being hard, yellow and parchment-like. Ligature mark – Horizontal or transverse continuous, round the neck, low down in the neck below the thyroid, the base of the groove or furrow being soft and reddish. 13.A very reading of the above medical opinion as found in Ex.P11, postmortem certificate, would clearly indicate that what was actually found as per the Doctor's opinion was that the ligature mark was complete and also around the neck. It would be quite clear that the possibility of hanging is actually ruled out. Under such circumstances, it is not correct on the part of the defence to state that 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/accused at the time of occurrence, his coming with the false theory that she died out of the cardiac arrest and taking a false plea that she died out of hanging and the medical opinion that she died of asphyxia due to ligature strangulation all would go to show that it was the accused who has committed the crime causing death. It is well settled proposition of law that in a given case where a particular circumstance was found missing, a responsible answer could be given only by the accused and if he comes with the false theory or he suppresses a fact, that link has got to be filled up in order to make it a complete chain. Now, in the case on hand, he has come with an inconsistent theory that he had passed on the information to P.W.1 that she died out of cardiac arrest, and when he faced trial before the trial Court, he took a plea that it was hanging. But, the medical opinion canvassed was contra that she died of asphyxia due to ligature strangulation. Thus all would make it evident that except the accused, no one could have committed the offence. 14.As far as the extra-judicial confession alleged to have been made by the appellant/accused to P.W.8 was concerned, it has got to be rejected on the following grounds. Firstly, the occurrence has taken place on 23.6.2004. According to P.W.8, he was a stranger, and the confession was made on 4.6.2004, and apart from that, the police was also present when it was orally made. This would suffice to reject the confession. Even after rejecting that part of the extra- judicial confession alleged to have been made by the accused to P.W.8., this Court is of the considered opinion that the circumstances recorded above would suffice pointing that it was he who has committed the murder of his wife. 15.Added further, P.Ws.1 to 5 have categorically stated that when they were living together, there were occasions in which he was pressing for dowry. The RDO has also made an enquiry and has given a report wherein it is found that there was dowry demand. The trial Court has marshaled the evidence proper and arrived at the correct conclusion which does not require any disturbance in the hands of this Court either factually or legally. 16.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. It is reported that the appellant is on bail. Hence the Sessions Judge shall take steps to commit him to prison to undergo the sentence. Sd/- Deputy Registrar /True Copy/ Sub.Asst.Registrar nsv https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Principal Sessions Judge, Thiruvallur 2.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 2007 NTK(CO) EM/31.8.09 https://hcservices.ecourts.gov.in/hcservices/