IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.02.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.947 of 2006 Baskaran S/o Kumarasamy ....Appellant/Accused. -vs- State represeted by Inspector of Police Malasamuthiram 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 dated 24.05.2006 made in S.C.No.15 of 2006 on the file of the learned Additional Sessions Judge, Fast Track Court, Nakakkal. For Appellant :: M/s.V.Muthukumaraswamy and A.T.Chandrasekaran For 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 and sentence passed against the sole accused by the learned Additional Sessions Judge, Fast Track Court, Namakkal in S.C.No.15 of 2006. He was convicted under Section 302 of I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to suffer simple imprisonment for 6 (six) months for the offence under Sec.302 of I.P.C. 2. The case of the prosecution as put forth before the trial court is as follows:- P.W.1 is the father of the deceased by name Kasthuri and P.W.2 is the mother. Accused is the husband of the deceased. The accused married the deceased on 21.02.2005. At the time of marriage 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 hearing the news that their daughter was found dead, P.W.1 rushed to Morepalayam Village along with his family where he found his daughter dead and blood was oozing out from the nose. On enquiry, he came to know that there was quarrel between the deceased and the accused and on the next morning at about 5.00 a.m. The accused informed his paternal uncle and asked him to come see. P.W.1 thereafter, lodged Complaint, Ex.P.1 to P.W.12 Sub Inspector of Police, Mallasamudhiram Police Station, prepared Express F.I.R., Ex.P.10, sent the original to the concerned Magistrate and copies to his higher officials through Head Constable, P.W10. 3. P.W.15 the Revenue Divisional Officer on receipt of copy of F.I.R., visited the scene of occurrence, conducted inquest on the body of the deceased prepared a report, examined witnesses and the accused and recorded their statements, Ex.p.15 (series) and thereafter prepared inquest report, Ex.P.14 . P.W.16 who took up further investigation, rushed to the scene of occurrence, at about6.00 a.m., on 27.03.2005 in the presence of P.W.14, the Village Administrate Officer and one Thangaraj, drew rough sketch, Ex.P.17, prepared observation mahazar,Ex.P.10, recovered, a pair of anklet, M.O.1, a pair of of toe ring,M.O.4, a pair of covering stud, M.O.6 and covering nose-screw, M.O.8 from the person of the deceased, under the cover of the mahazar, Ex.P.11 in the presence of the witnesses. M.O.2 is the thali and a pair of ear stud is M.O.5 which were worn by the deceased. P.W.15, the Revenue Divisional Officer gave a request to the Doctor, P.W.7 for conducting 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.7 attached to Thiruchengode Government Hospital conducted autopsy on the body of the deceased and found the following features:- External examination:- Body of a moderately nourished female, lyign on its back, face congested with bluish discolouration of skin, eyes opened, eye balls protruding out, mouth opened, teeth complete in number, tongue partially protruding out. Blisters present over the chest wall and abdomen. Faecal staining of anal orifices is seen. Frothing of nostrils is seen. Internal Examination:- 1. Skull-intact 2. Brain liquified condition with 1400 grams 3. Hyoid bone-intact 4. 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 grams 8. 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 effect is Ex.P.7. He preserved the viscera for chemical analysis. During chemical analysis, no poisonous substance was detected in any of the viscera. Toxicology Report is Ex.P.5. On receipt of Toxicology Report, Ex.P.15, Doctor, P.W.7 has opined that the deceased would appear to have died of asphyxia due to smothering 36 to 48 hours prior to the death and issued his his final opinion, Ex.P.8 to that effect. 5. Thereafter, as the preliminary investigation revealed that it was the case of murder, P.W.16, the Deputy Superintendent of Police transferred the investigation to the Inspector of Police, P.W.18 for further investigation. Then, P.W.18 Inspector of Police, took up further investigation from the point where the Deputy Superintendent of Police left the investigation. He altered the offence to one under Section 302 of I.P.C., sent the express alteration report to the Judicial Magistrate concerned. He examined the witnesses. At about 9.00 a.m., on 29.03.2005, he arrested that accused near Morepalayam bus stand, recorded his voluntary confession in the presence of P.W.14 and another, pursuant to the admissible confessional statement of the accused, Ex.P.12 he rushed to the house of the accused at about 11.00 a.m. Where the accused handed over Green colour designed mat, M.O.7; hammer, M.O.15; brown coloured bed-sheet, M.O.14; stainless tumbler, M.O.13; and also gold stud (studded with a stone), M.O.5; ½ sovereign gold talisman, M.O.3 (series); ¼ sovereign gold thali pottu,M.O.2; and 5 gram sleeping pills (series), M.O.16 under the cover of the mahazar Ex.P.13. He examined the attesting witnesses and recorded their statement. Thereafter, at about 11.30 a.m. He further recovered the legs of the cot, M.O.17 and nylon tape M.O.18, measuring about 200 feet knitted in the cot under the cover mahazar, Ex.P.20 in the presence of the very same attesting witnesses under the cover of mahazar. Then, he sent the material objects to the court. Thereafter, he examined the formal witnesses and recorded their statement. P.W.18, upon completion of his investigation and after having perused the records, laid the final report on 06.06.2005 as against the sole accused for the offence punishable under Sec.302 of IPC for having murdered his wife. https://hcservices.ecourts.gov.in/hcservices/ 6. In order to substantiate the charges, prosecution has examined 18 witnesses and marked 20 exhibits and produced 18 material objects. 7. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he totally denied them as false. On behalf of the defence, no document was marked and no witness was examined. However, learned trial Judge found the accused guilty of the offence, convicted and sentenced him as stated earlier. 8. The trial Court had after a full-fledged trial come to a conclusion to convict accused under Sec.302 of I.P.C. and the accused was sentenced to imprisonment and to pay fine as aforesaid. 9. Mr.V.Muthukumarasamy, learned counsel for the appellant/accused would submit in his argument that the trial Court had come to a wrong conclusion without perusing the evidence and without any evidence. The trial Court did not appreciate the case since the case is based upon the circumstantial evidence and the prosecution has not proved proved all the links of chains to hold the accused was guilty for the offence. He would further submit in his argument that the deceased was suffering from high blood pressure and recently before her death she suffered an electricity shock and due to the said illness, she would have died of high blood pressure. He would also submit in his argument that the prosecution did not also prove the factum of purchasing sleeping pills and the medical shop from which the same were allegedly purchased by the accused, so as to commit the murder of his wife. He would further submit that there was no motive for the accused to commit murder and the evidence of the neighbours would also show that there was no necessity for the accused to commit murder of his wife within a period 35 days of their marriage. 10. The learned counsel for the appellant would draw our attention to the medical evidence in which the Doctor, P.W.7 has opined that no blood was oozing out from the nose and therefore, the cause of the death would be due to high blood pressure. Therefore, he had submitted in his argument that the the prosecution has not proved the circumstances in chain without any missing link and as such judgment of conviction recorded by the trial Court solely depending upon the circumstantial evidence which has not been proved by the prosecution that the accused is guilty for the offence of murder under Section 302 of I.P.C. is liable to be set aside and the appellant be acquitted from the charge of murder. 11. Mr.P.Kumaresan, learned Additional Public Prosecutor would submit in his argument that the accused had married the deceased 35 days prior to the occurrence and there was dispute of selling the jewels belonged to the deceased person and the accused was https://hcservices.ecourts.gov.in/hcservices/ pestering upon the deceased for getting more jewels from her parents house for the purpose of his expenditure and thereby he had harassed the deceased. He would further submit that the culmination of the harassment had led to the commission of the murder of the deceased as she had refused to part with her jewels as demanded by the accused. He would also submit in his argument that the medical evidence would clinchingly show that the deceased by name Kasthuri died due to asphyxia caused by smothering, when she was in asleep on the fateful night. He had also drawn attention of the court that the face of the deceased was found bluish at the time of her death that this would also a symptom for murder and the death was caused only by asphyxia and not due to high blood pressure. He would further submit in his argument that the cause of death as pleaded by the learned counsel for the appellant is a farce one and the medical evidence did not support the case of the defence. He had also drawn our attention to the evidence of P.Ws. 1, 2 and 4 to the fact that the relationship between the accused and the deceased was strained due to the fact that the accused had been pestering for jewels for his extravagant expenses. Therefore, he finally submitted that the judgment of the trial court convicting and sentencing the accused for the offence under Section 302 of I.P.C. is perfectly alright and it requires no interference. 12. We have given our anxious consideration to the arguments advanced on either side. In order to substantiate its case,the prosecution has examined P.Ws.1 to 18 and adduced Exs.P.1 to 20 and produced M.Os.1 to 18. the evidence of of P.Ws.1, 2 and 4 would go to show that the accused had married the deceased on 21.02.2005 on an arranged marriage. P.W.4 was the marriage broker for the conclusion of the marriage in between the accused and the deceased. At the time of marriage ½ sovereign stud, ¼ sovereign of nose-screw and anklets were gifted to the deceased and apart from that a ½ sovereign ring was given to the accused. It is also spoken to by the witnesses that after the lapse of 35 days, when they were leading marital life in a separate residence, the deceased was found 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 his deceased daughter, he found that there was some blood oozing out from her mouth and the jewellery which were given to her were not found on her person. On the other hand, he found that she was wearing covering studs on her person. Further, the evidence would go to show that on the said night, the accused and the deceased were alone sleeping in the house and the accused had asked his junior paternal uncle to come and see that his wife was found dead and thereafter, only on hearing the news through the neighbours, the mother of the deceased came to the scene of occurrence. The accused did not complain the same to the police. Therefore, P.W.1 doubted the accused. P.W.2 is the mother of the deceased and the wife of P.W.1. The evidence of P.W.1 and P.W.4 would also corroborate 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 that after 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 the accused always used to quarrel with the deceased and on the fateful day, P.W.4 was informed by the accused that the deceased did not wake up in morning and the accused asked him to come over and see the deceased immediately and on such information P.W.4 rushed to the house of the accused and found the deceased Kasthuri dead and thereafter, he passed on the information to the parents of the deceased Kasthuri. His evidence would go a long way to show that there were frequent quarrel in between the accused and the deceased immediately after the marriage at their separate residence at Morepalayam. The cause for the quarrel would be that the accused used to demand the jewellery worn by the deceased for his expenditure and the deceased had already parted with her jewels and as the accused was demanding more, the deceased refused to part with her remaining jewels. The available evidence would go a long way to show that the accused and the deceased were sleeping alone on the fateful night at their house, where both of them were living. The medical evidence examined by the prosecution through Doctor, P.W.7 who had conducted autopsy on the deceased Kasthuri coupled with Postmortem Certificate, Ex.P.7 and final opinion Ex.P.8 would reveal that the cause of death of the deceased was due to asphyxia by smothering. 13. On a careful perusal of the evidence of Doctor, P.W.7 coupled with Ex.P.7 and P.8 we could see, that the death of the deceased would have been due to asphyxia caused by smothering. It is also seen that the face of the deceased was found bluish and the said change in the face would also lead to a decision that the deceased was dead due to asphyxia. Therefore, we could see that the argument of the learned counsel for the appellant/accused that the death of the deceased would have been caused due to high blood pressure or due to illness due to the electric shock which she had suffered just a 2 – 3 weeks back prior to her death has no force at all. It is settled a law that the opinion of the medical expert can be taken as a conclusive proof when the circumstances would go to show that the accused should be fastened with the criminality. It is true that the accused and the deceased were sleeping together on the fateful night i.e. On 26.03.2005. The deceased was found dead on the next morning and the cause for the death was due to asphyxia by smothering. This would heavily cast the burden upon the accused to explain as to how he is not liable from criminality and the charge framed against him. The explanation offered by the accused that the death would have been caused by high blood pressure or illness suffered by her due to electric shock received by her just 2 - 3 weeks prior to the occurrence was ruled out by the medical evidence. 14. Therefore, the judgment of Apex Court reported in AIR 1980 Supreme Court 531 Murarilal Vs. State of Madhya Pradesh is applicable to the present case. The relevant passage is extracted below:- https://hcservices.ecourts.gov.in/hcservices/ "We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, have due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted." 15. For all the above reasons, we are not in agreement with any of the submissions made by the learned counsel for the appellant/accused in challenging the judgment of conviction and sentence. On a over all consideration of the evidence and the cumulative circumstances in the present case we are of the considered view that the finding of the trial Court that the accused is guilty of commission of murder of his wife does not require any interference. The appeal fails and the conviction and sentence passed by the learned Additional Sessions Judge, Fast Tract Court, Namakkal in S.C.No.15 of 2006 dated 24.05.2006 are confirmed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kmk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District Sessions Judge, Fast Track Court, Namakkal 2. -do- thru' the Principal District Judge, Namakkal 3. The Superintendent, Central Prison, Coimbatore 4. The District Collector, Namakkal 5. The Director General of Police, Chennai 6. The Public Prosecutor, High Court, Madras 7. The Inspector of Police, Melasamuthiram Police Station, Namakkal District. + 1 CC To Mr. V.Muthukumarasamy, Advocate SR NO.16258 Crl.A.No.947 of 2006 asm[co] gp/19.3. https://hcservices.ecourts.gov.in/hcservices/