IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-1-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.No.178 of 2007 V.C.Shyamala .. Appellant/Accused vs State by Inspector of Police CBI/SCB/Chennai R.C.No.1(S)/2001 .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the V Additional Sessions Judge, Madras, in S.C.No.370 of 2004 dated 31.1.2007. For Appellant : Mr.Shunmughasundaram Senior Counsel for Mr.A.Gandhi For Respondent : Mr.N.Chandrasekaran Special Public Prosecutor for CBI JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the V Additional Sessions Judge, Madras, made in S.C.No.370 of 2004 whereby the sole accused/appellant stood charged, tried, found guilty under Sec.302 of IPC and awarded life imprisonment. 2.The short facts necessary for the disposal of this appeal can be stated thus: (a) The deceased Tharakeswari, a practising lawyer of the High Court of Chennai, who fell in love with one Balaji, another practising lawyer, married him on 28.8.1998 despite the objection from her parents side. After the marriage that took place at Titutani Temple, she was living with her husband Mr.Balaji, the mother-in-law namely the accused/appellant and her father-in-law at House No.217, Paper Mills Road, Perambur, Chennai. At the time of the eighth month of her pregnancy, she ceased to practise, and she was in the house. She gave birth to a child. There was frequent https://hcservices.ecourts.gov.in/hcservices/ quarrel between the mother-in-law and the daughter-in-law which was used to be settled by her husband. P.Ws.1, 2 and 10 are the neighbours. The husband of the accused was carrying on a small shop nearby. As usual on 23.11.2000, a quarrel started between the accused and the deceased on the issue of the motion passed by the child. The accused tried to convince for which she sought the help of P.Ws.3 and 4, but in vain. The husband of the deceased left the house at about 11.30 A.M. to bring the aunt to pacify her. This was spoken to by P.Ws.4, 6, 7 and 11. P.W.12, the landlord of P.W.6 would also state that the accused purchased milk at about 2.30 P.M. from the shop. (b) At about 3.00 P.M., the very day, the accused called P.W.1 informing that smoke was coming out of the hall of the kitchen, and P.Ws.1 and 2 rushed to the spot. They could not enter into the hall through the kitchen side door. Hence they came towards the backside door, and they could not also enter through that. Then, P.W.1 peeped through the ventilator and found the dead body of Tharakeswari. Immediately, he went to K-9 Thiru-Vi-Ka Nagar Police Station and preferred Ex.P1, the complaint. P.W.13, the Sub Inspector of Police, who was on duty, on the strength of Ex.P1, the report, registered a case in Crime No.2050 of 2000 under Sec.174 of Cr.P.C. and informed the same to the higher officials. Ex.P39 is the printed FIR which was sent to the Court. (c) P.W.21, the Assistant Commissioner of Police, on receipt of the copy of the FIR took up investigation, proceeded to the spot, made an inspection, prepared an observation mahazar, Ex.P3, and also drew a rough sketch. He also recorded the statements of the witnesses, and altered the case to Sec.306 of IPC. He also recovered material objects. P.W.16, the Tahsildar, was informed about the same since the death has taken place within two years from the time of marriage. P.W.16 also conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P15. The dead body was sent to the Hospital along with a requisition for the purpose of postmortem. (d) P.W.18, the Professor of Forensic Medicine, Kilpauk Medical College, Chennai, on receipt of the requisition, conducted autopsy on the dead body of Tharakeswari and has given a postmortem certificate, Ex.P25. He has given his final opinion after getting the report from the Analyst, that the deceased would appear to have died of asphyxia due to strangulation and the burns on the body are postmortem in nature. (e) On the intervention of this Court in C.M.P.No.994 of 2001, the investigation was transferred to the CBI. The statements of both the appellant/accused and her son Balaji were recorded by P.W.20, the XIII Metropolitan Magistrate, and the proceedings are marked as Exs.P29 to P36 respectively. (f) P.W.22, the Inspector of Police, attached to the CBI, SCB, Chennai, took up investigation and on completion of investigation, filed the final report against the accused under Sec.302 of IPC. 3.The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 22 witnesses and also relied on 48 exhibits and https://hcservices.ecourts.gov.in/hcservices/ 9 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 she flatly denied as false. On the side of the defence, one Dr.K.Thangaraj was examined, and 18 exhibits were marked. The trial Court heard the arguments advanced and after looking into the materials, took the view that the prosecution has proved the case beyond reasonable doubt and hence found her guilty and awarded life imprisonment which is the subject matter of challenge before this Court. 4.The learned Senior Counsel Mr.Shunmughasundaram appearing for the appellant, would submit that in the instant case, the prosecution has miserably failed to prove its case; that the prosecution rested its case entirely on the circumstantial evidence; that the defence plea before the trial Court that it was a case of commission of suicide, and the appellant had no role to play was not at all considered by the trial Court despite sufficient materials that were available indicating the same; that as far as the motive was concerned, the prosecution projected its case stating that the accused-the mother-in-law and her daughter-in-law-the deceased had often quarrel which led the accused to strangulate her and cause her death; that the only witness examined in that regard is P.W.9 one Arunkumar, the brother of the deceased; that according to him, the deceased phoned over to him that she was actually attacked by her mother-in-law; but, he did not go over there immediately or make any enquiry about the incident from the accused; that the same would go to show that if really there was a quarrel between the accused and the deceased, nobody would keep quiet without pacifying or informing about the incident to the inmates of the house; that it is not uncommon between the mother-in-law and daughter-in-law, and thus, the same cannot be attributed to the accused/appellant to do such a grave crime; that the same also remained not proved; that further, the allegation that the accused was residing in that place for more than 30 years, and she gained popularity, and she could not control the filthy language uttered by the daughter-in-law in the presence of public, and hence she made up her mind to cause the death of her daughter-in-law cannot also be stated to be correct since there is no evidence pointing to the same; and that in the absence of any evidence indicating the involvement of the accused, it cannot be stated that the accused entertained any motive to do the crime. 5.The learned Senior Counsel would further add that the medical evidence is given a go-by to the entire prosecution story; that according to the charge that was levelled against the appellant/accused, she actually strangulated and caused her death, and thereafter she poured kerosene and set her ablaze; but, the admissions made by P.W.18, the Doctor, would stand contra to the prosecution case; that first of all, the step mother of the deceased met the Doctor in the Office to obtain the postmortem certificate; that there was unexplained delay of 19 days in giving the postmortem certificate; that P.W.18, the Doctor, had not taken any steps to send the same immediately; that further, no interim report was also sent by P.W.18 within 24 hours regarding the presence of the injuries, https://hcservices.ecourts.gov.in/hcservices/ etc., to the Investigating Officer or to the Court concerned as stipulated in Ex.D13, the specimen form; that further Ex.D14, the postmortem rough notes, would clearly indicate that P.W.18 reserved the final opinion for chemical report to come; but, he issued a postmortem certificate, Ex.P25, based on the histopathology report, Ex.P42; that from the said report it could be seen that the skin bits received by the department, were free from burns; but, P.W.18, the autopsy Doctor, has wrongly sent the unburnt skin to the department to know whether the burns were ante-mortem or postmortem from which any opinion could not be formed; that further P.W.18 gave the postmortem certificate only based on that report; and that the report contained "no vital reaction seen in the skin bits received". It was contended before the trial Court and equally here also that the autopsy Doctor sent only the unburnt skin bits to the department to find out whether they were ante-mortem or postmortem; that since no reaction was found, it would be clearly indicative of the fact that the unburnt skin bits were found, and hence no opinion could be formed; that regarding the injury No.3, he has mentioned in his earlier notes that it was only 3 inches; but when he came forward with the postmortem certificate, it was found to be of 1 ½ inches; that how it had happened, P.W.18 could not explain; and that it would be quite clear that he has not properly done the postmortem. 6.Added further the learned Senior Counsel that the Doctor has given his report that the injuries which were abrasions, were found on the neck, and if the body was actually burnt and charred, those injuries could not have been noticed at all; that such injuries would be clearly indicative of the fact that the postmortem was not conducted properly or he has come with the version other than the truth; and that according to the prosecution, she also consumed sleeping pills, and they were also found aside, and 4 grams of diazepam were also found in the stomach. The learned Senior Counsel took the Court to the medical jurisprudence and would submit that in the contacting part of the buttock and also the palms, there were no burn injuries found; that it would clearly be indicative of the fact that it could have been only by suicide and not by the act by somebody else; that in the instant case, only the high dosage led to the death if left untreated as per the opinions of the Doctors both on the side of the prosecution and also on the side of the defence. 7.It is further submitted by the learned Senior Counsel that the prosecution much relied upon the confessional statement alleged to have been given by the accused/appellant before the XIII M.M., Madras, examined as P.W.20; that it is pertinent to point out that the occurrence has taken place on 23.11.2000; that they applied for bail, and bail was granted on 7.12.2000; that originally her son who was also a practising Advocate, was added as an accused; that at the time of filing the charge sheet, he was dropped; that she also asked for bail, and she was enjoying bail; that at that time, the case was entrusted to CBI at the intervention of the orders of this Court; that it is pertinent to point out that after the case was taken up for investigation by the CBI, she was summoned to appear before the Court; that she appeared before the Court and gave a confessional statement; that it is true that it was a judicial confession; but, it https://hcservices.ecourts.gov.in/hcservices/ was retracted twice, for the first time when she was before the same MM and also for the second time when she was questioned under Sec.313 of Cr.P.C.; that it is true that though it was a retracted confession, it could be acted upon, but it must be corroborated on the relevant particulars; that in the instant case, it failed to do so; that the confessional statement was actually relied upon by the prosecution and accepted by the trial Court for sustaining a conviction; but, for two reasons, it should not have been done; and that the mandatory provisions under Sec.164(2) of Cr.P.C. have not been actually strictly followed. The learned Counsel relied on the decisions of the Apex Court reported in 1995 SCC (CRI) 323 (SHIVAPPA V. STATE OF KARNATAKA) and 2002 SCC (CRI) 673 (AYYUB V. STATE OF U.P.) wherein it is held that under the provisions, the Magistrate has to append a certificate, and he must clearly reflect that when the accused appeared and gave the statement, it was voluntarily made; that even the Magistrate before the trial Court at the time of cross- examination has candidly admitted that he has not asked the necessary questions; that further, he has also not informed that though she had not given the confessional statement, she would not be sent to police custody; that this would clearly be indicative of the fact that the Magistrate has not strictly followed the mandatory provision under Sec.164 of Cr.P.C. which, according to the decision, would hit; that under the circumstances, the confession should not be given any effect at all; that further, it cannot be acted upon; that it is true that she appeared before the Court on summons and gave a statement; that the confession could be acted upon if it gets corroboration as to the material particulars; that in the instant case, the specific charge was that she strangulated her and caused her death; that in the course of the entire confession, she has not spoken a word about the strangulation; that under the circumstances, it could not have lent any support to the prosecution case; that under the circumstances, the motive found, the medical opinion canvassed through the Doctor, and also the confession which cannot be acted upon both factually and legally, will not in any way be helpful to the prosecution case, and hence the prosecution has miserably failed to prove its case, and the trial Court has not considered any one of the aspects now placed before the Court. 8.Added further the learned Senior Counsel as his last point that even according to P.W.1 and other witnesses, the house was bolted on both sides, and the deceased was found inside; that if it is true that the accused had got any role to play, she should have been inside the house; but the accused was outside the house, and it was bolted on both sides; that it would also be indicative of the fact that the deceased has actually committed suicide by pouring kerosene and setting fire, and under the circumstances, she is entitled for acquittal in the hands of this Court. 9.The Court heard the learned Special Public Prosecutor for CBI on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that the dead body of Tharakeswari, a practising lawyer of this Court, was actually found inside her https://hcservices.ecourts.gov.in/hcservices/ house, and on information, a case was registered originally under Sec.174 of Cr.P.C., and investigation was taken up by P.W.21. During the investigation, it was found to be a suspicious one. Then immediately an information was given to P.W.16, the Tahsildar, who made a visit. He conducted inquest on the dead body, and thereafter, the dead body was sent to the Hospital for the purpose of autopsy. P.W.18, the Doctor, who conducted autopsy, after getting the report from the department, gave his opinion that she died out of asphyxia due to strangulation, and the burns on the body are postmortem in nature. Thus, how Tharakeswari met her death was actually the subject matter in controversy before the trial Court. 11.It is true that the prosecution rested its entire case on the circumstantial evidence. The main three circumstances relied on by the prosecution are as follows. (1) motive; (2) medical opinion that was canvassed and (3) confessional statement given by the accused/appellant before the XIII Metropolitan Magistrate, Madras. The Court made a thorough scrutiny of the entire materials. By doing so, the following circumstances are noticed by the Court. 12.Tharakeswari who fell in love with one Balaji another practising lawyer, the son of the appellant/accused, married him despite the objection made by the parents. The evidence would clearly indicate that her parents did not attend the marriage, and only her brother and sister attended. She did not go to her parents' house at any point of time after the marriage, and she was living with the father-in-law, mother-in-law and her husband during the relevant time. She has given birth to a child, and the child was also in her custody during the relevant time. Even from the statement given by Balaji, her husband, it would be quite clear that the mother-in-law and daughter-in-law had often quarrel with each other. It would be quite clear that the appellant has been living in that area for number of years, and she was an illiterate. But, the deceased was not only literate, but also a practising lawyer. There were quarrels in which the deceased has used words which could have been not liked by her mother-in-law. As far as the motive part is concerned, it could be seen that there were often quarrels even as per the statement of her husband, between the mother-in-law and daughter-in-law. 13.On the date of occurrence, it is not in controversy that the appellant/accused was very well available in the house, and she was along with the deceased. According to her version, she took the child outside, and the child was in the nearby shop where the husband was carrying on the business. As stated above, during the relevant time, it is not in controversy that the accused was also along with her daughter-in-law. According to her, when she went outside, she found fumes coming out of the house, and she informed to P.Ws.1 and 2 and others, and they found the house locked inside and outside, and then it was broke open. The only contention put forth by the learned Senior Counsel for the appellant is that while the house was locked on both sides and it was also broke open, there was no possibility to attribute any role to the appellant/accused cannot be countenanced. From the evidence of the Investigating Officer and also the https://hcservices.ecourts.gov.in/hcservices/ observation mahazar, it could be seen that the house could be locked both from inside and from outside. Thus, there was all possibility for locking the house from outside also. 14.Further, a strong circumstance, in the opinion of the Court, is the medical evidence adduced by the prosecution and placed before the trial Court. The occurrence has taken place on 23.11.2000 at about 3.15 P.M. The FIR has come into existence at about 3.30 P.M., wherein it is mentioned that suspicious death has taken place. At this juncture, it is pertinent to point out that the report was given by P.W.1 and not by the accused or the husband of the deceased. It is not her case that she was not present. But, it was her case that it was she who found the fumes coming out of the house and informed to P.Ws.1 and 2. If the accused and the husband of the deceased were really available at that time and they informed about the situation to others, they could have well gone to the police station immediately and gave a report; but, they have not done so. But, it was P.W.1 who went to the police station and gave a report, and there was some suspicion in her death. Thereafter, it was registered under Sec.174 of Cr.P.C., and investigation was taken up. Further, it is to be pointed out that the postmortem was done by P.W.18, the Doctor, on 25.11.2000. The Doctor has reserved his opinion, and he has taken the skin bits and sent to the Department of Pathology for histopathological examination in order to give his final opinion as to the cause of death. Ex.P42 is the histopathology report. After receiving the said report, the Doctor has given his final opinion that the deceased would appear to have died of asphyxia due to strangulation, and his further opinion was to the effect that the burns found were postmortem in nature. 15.At this juncture, the learned Senior Counsel pointed out certain discrepancies found in the postmortem notes prepared by the postmortem Doctor and also the subsequent final report, that the measurement was found to be discrepant. In the considered opinion of this Court, these are all immaterial for the simple reason that the only question that arose before the trial Court was whether it was an act of suicide or an act done by the accused. Now, the only question is whether the deceased set herself ablaze or whether it was a case of strangulation. In the instant case, the injuries that were found would clearly indicate that they were all abrasions on the neck. Further, if the death was actually caused already and thereafter, she was set ablaze, there was no possibility of the carbon particles entering into the larynx and trachea. According to the earliest report, they were not actually found, and carbon particles were found on the portion of the neck which was protruding outside and not inside. The Supreme Court had an occasion to consider the similar situation in a case reported in AIR 2005 SUPREME COURT 1014 (STATE OF KARNATAKA V. K.GOPALAKRISHNA) and has held that the absence of carbon particles and fumes in the trachea and bronchus lead to the irresistible conclusion that the deceased must have died before she was set on fire, and some amount of carbon particles and fumes would have certainly been found in the trachea and bronchus if she were alive when set on fire. In the instant case, all the above would go to show that setting ablaze affair should have taken place only https://hcservices.ecourts.gov.in/hcservices/ subsequent to the death caused, and there were abrasions found. Both would be pointing to the fact that death has been caused already by strangulation, and thereafter, it was set fire. Now, at this juncture, the only person available at that time along with the daughter-in-law was the accused mother-in-law. Thus, all the above circumstances would be clearly pointing to the fact that she was the person who actually caused the death by strangulation and also set her ablaze after the death was caused, and came outside and informed to others as if there was something happened that it was a case of self immolation. 16.It is true that the Court has to necessarily agree with the contentions put forth by the learned Senior Counsel in respect of the confessional statement recorded by the XIII MM for the infirmities found. Sec.164 of Cr.P.C. as rightly pointed out by the learned Senior Counsel, mandates that it should be done following the procedural formalities found therein. Two lacunas are noticed by the Court as pointed out by him. Firstly, before appending a certificate, there is nothing to indicate that the Magistrate satisfied himself that it was given voluntarily. Secondly, there is nothing further to show that he told the accused that even if the confession is not given, she would not be sent to police custody. In the decision reported in 1995 SCC (CRI) 323 (SHIVAPPA V. STATE OF KARNATAKA) the Apex Court has held as follows: "6.From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important