IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 28.12.2004 CORAM: THE HONOURABLE MR.JUSTICE V.KANAGARAJ AND THE HONOURABLE MR.JUSTICE T.V.MASILAMANI CRIMINAL APPEAL No.427 OF 2002 Dhandapani .. Appellant/1st Accused v. STATE: by The Inspector of Police Alangiam Police Station Erode District. .. Respondent/Complainant Criminal Appeal preferred under Section 374(2) Cr.P.C. for the relief as stated therein. * * * For appellant : Mr.V.K.Muthusamy, Senior Counsel for Mr.M.M.Sundaresh For respondent : Mr.E.Raja APP. * * * JUDGMENT V.KANAGARAJ, J. ============== This Criminal Appeal is directed against the conviction and sentence passed by the Court of Principal Sessions Judge, Erode as per his Judgment dated 19.02.2002 in S.C.No.145 of 2001 thereby convicting the appellant-A1 for the commission of offences under Sections 498-A, 302 & 201 IPC and under Section 4 of Dowry Prohibition Act and sentencing him respectively, to undergo R.I. for three years, life imprisonment, R.I. for five years and R.I. for six months and to pay a fine of Rs.2000/- in default to undergo RI for two months further ordering these sentences to run concurrently. 2. On a perusal of the materials placed on record and upon hearing the learned counsel for the appellant and the learned Additional Public Prosecutor representing the State, it comes to be https://hcservices.ecourts.gov.in/hcservices/ known that the appellant is the first accused and he has been charged for the offences punishable under Sections 498-A,302 & 201 IPC and under section 4 of Dowry Prohibition Act. 3. The case of the prosecution is that A.1 is the son of A.2 and A.3 and they were residing at Kuttupulli Thottam, Aalangayam. The deceased Selvi was the wife of Appellant/A1 and that the accused/appellant joining hands with his parents A.2 and A.3, harassed the deceased Selvi by demanding dowry on various occasions; that one month prior to the date of occurrence, the accused pestered the victim Selvi to bring a sum of Rs.50,000/- from her father for constructing their house and as the victim could not bring the dowry amount demanded by the accused, on 31.10.1999 at about 11.00 am. in their newly constructed house at Kuttupulli Thottam, the accused decided to kill the victim Selvi and had beaten her severely with force, as a result of which, she died; that in order to screen the death of the deceased Selvi, the accused poured kerosene on the victim Selvi and closed the door, tied the same with iron chain and locked the door from outside and lighted a match stick and threw the same through the window which was kept open, and set the victim on fire and hence the charges against all the three accused for commission of offences punishable under Sections 498-A, 302 and 201 IPC and u/sec.4 of the Dowry Prohibition Act. 4. Thereupon, the Court of Principal Sessions Judge, Erode, having framed the above charges against the accused/appellant and two other accused and since they pleaded not guilty of the offences charged, conducted the trial into the charges with due opportunity for the prosecution and defence as well during which, on the part of the prosecution, whose burden it was to prove the charges beyond all reasonable doubts, as warranted under law, 19 witnesses have been examined as P.Ws.1 to 19 for oral evidence and marked 21 documents as Exs.P.1 to P.21 for documentary evidence further exhibiting 20 material objects as M.Os.1 to 20. The defence evidence placed on record is nil. 5. In consideration of the above evidence placed on record, the trial Court found the appellant/A.1 guilty of the offence charged under Sections 498-A, 302 & 201 IPC and under Section 4 of Dowry Prohibition Act and sentenced him respectively, to undergo the punishments as extracted supra further registering an acquittal judgment so far as the second and third accused before the trial Court are concerned. It is only challenging the said conviction and sentences, the appellant/A.1 has come forward to prefer the above criminal Appeal. 6. Heard the learned counsel appearing on behalf of the appellant/convict, and the learned Additional Public Prosecutor appearing contra. https://hcservices.ecourts.gov.in/hcservices/ 7. During arguments, the learned senior counsel appearing on behalf of the appellant/convict would submit that after holding the inquest, as it is reflected in postmortem requisition Ex.P.3 dated 31.10.1999, the suicidal case was converted into a case of murder; that the post mortem certificate of the deceased Selvi in Ex.P.2, would reveal that the doctor who conducted autopsy offered his opinion under Ex.P.4 to the effect that 'the deceased appeared to have died of asphyxia and the burns looking like post mortem burns'. 8. The learned senior counsel would further submit that on the strength of extra judicial confession, the trial Court has arrived at the conclusion that the commission of offence is one punishable under Section 302 IPC but, the case is purely a suicidal one. Learned senior counsel would also submit that the extra judicial confession is an after-thought, given belatedly. 9. In support of his arguments, the learned senior counsel appearing for the appellant would rely on the following extracts from the text books: (i) Page 322 of the H.W.V.Cox, Medical Jurisprudence and Toxicology, wherein the Burns Inflicted Before or after Death is dealt with. (ii) Page 212 (a) of the Modi's Medical Jurisprudence and Toxicology ; (iii) Police: The Investigation of Violence : (relevant portions are at pages 158, 160 and 162) 10. From H.W.V.Cox Medical Jurisprudence and Toxicology, the relevant portion relied on by the learned senior counsel for the appellant is as under: "Were the Burns Inflicted Before or after Death? -- This primary decision is of great forensic importance, because of the possibility of the disposal of a criminal death in a fire. The differentiation between ante-mortem and post-mortem burns must be attempted in every examination of a fatal burning. Although this may be difficult or even impossible in some cases, it must be uppermost in the mind of the medical examiner. The most important criterion is the presence or absence of a vital reaction at the margin of the burns. Where par of the body surface is burnt during life, there will almost inevitably be a zone of hyperaemia at the edge of the burn area, except when death follows very soon afterwards. While the person is still alive, there may be reddening of the skin even beyond this zone, but this may fade after death leaving only the marginal zone of erythema at the edge of the burn. This may vary in width but is usually a centimetre or so https://hcservices.ecourts.gov.in/hcservices/ unless death supervened very soon. It is due to oedema of the tissues and capillary dilatation and merges with the edge of the burn which may show blistering or charring. Unfortunately, where death occurs very rapidly (within a few moments) then the erythematous margin of an ante-mortem burn may be indistinct or even absent. However, wherever survival persists for more than a few moments it is almost invariably found. The presence of a vital reaction is absolute proof that the person was alive during the fire as this cannot be simulated in a postmortem burn. Blistering and reddening of the actual burned area can occur in a postmortem burn but not the peripheral zone of vital reaction. Difficulty arises where the body is completely covered with burns so that no unburnt skin remains to display a vital reaction. Where the body is actually charred or incinerated then naturally this aspect of determining the time of the burn is impossible." "The next important matter is the presence of carbon monoxide in the body, which may be obvious even externally by the pinkness of the post-mortem hypostasis. In many fire victims, the first incision at autopsy reveals a cherry-pink colour of the blood and muscles which can be confirmed by simple spectroscopic examination to be due to carboxyhaemoglobin. Even in rapid fires such as in automobiles, considerable quantities of carbon monoxide may be released and be respired even though life only survives for a moment or two. However, great caution must be used in interpreting carboxyhaemoglobin in fire victims. The following two rules are of first importance:- (a) If the tissues of a deceased victim contain a significant quantity of carbon monoxide (say more than 10% saturation) then the victim must have been alive during the fire. (b) However, if the tissues contain no carbon monoxide, this does not mean that he must have been dead during the fire. This latter statement is of great importance, as several cases have occurred in which false accusations of murder have been made against persons where alleged victims have been found dead in a fire with no carbon monoxide in their body. It is a confirmed fact that undoubted cases of ante-mortem fatal burns have no carbon monoxide in their blood-streams, due to a variety of reasons such as low production of carbon monoxide, convection currents, rapid death, and another https://hcservices.ecourts.gov.in/hcservices/ factors which make it quite unsafe to use the absence of carbon monoxide as a criterion of death before the fire occurred. However, the converse can be accepted with confidence, that is, the presence of carbon monoxide means that the person was alive during the fire". 11. From MODI's Medical Jurisprudence and Toxicology, the relevant portion pointed out is extracted: "Clinical Features: Clinical features are divided into three stages: the stage of inspiratory dyspnoea; the stage of expiratory dyspnoea and the stage of exhaustion and respiratory failure. In the first stage, the face nears an anxious look and the patient complains of heaviness in the head and ringing in the ears. The lips are livid, and the eyes prominent. The respiration becomes deep, hurried and laboured, the extraordinary muscles of respiration being called into play. The blood pressure rises and the pulse becomes slow. The consciousness is usually lost at the end of this stage, which lasts for one minute. In the second stage, because of retention of carbon dioxide, which falls as the blood lactate content increases and lack of oxygen, the respiration is more laboured and spasmodic and there may be clouding of consciousness, convulsions, and even relaxation of sphincters. Owing to the venous and capillary stagnation, the face and the hands are deeply congested and cyanosed and there is considerable exudation of fluid in the mouth and the lungs due to increased capillary permeability. The fluid may even be blood tinged in the terminal stage. Tongue injured by the teeth is seen protruding. During this stage, which lasts one to two minutes, effects of sympathetic and para sympathetic stimulation manifest, for example, increased secretion of saliva, increased heart rate and increased gastrointestinal mobility, incontenence of bowls and bladder etc. In the third stage, (of two to three minutes duration), the respiratory and the other nervous centres are paralysed, due to cerebral anoxia, which damages the brain permanently. The muscles become flaccid, there is complete insensibility, the reflexes are lost and the pupils are widely dilated. The blood pressure falls. Prolonged sighing inspirations occur at longer and longer intervals until they cease altogether and death ensues. The pulse is scarcely https://hcservices.ecourts.gov.in/hcservices/ perceptible but the heart may continue to beat for ten to fifteen minutes after respiration have quite ceased. The three stages last for about three to five minutes before death takes place. They may be prolonged for two or three times as long. Occasionally, asphyxia may bring about death almost instantly. Artificial respiration, if applied immediately, may revive the heart and reverse the vicious symptoms. (a) External The face is either calm and pale in slow asphyxia or distorted, congested and cyanosed in cases of sudden asphyxia. The lips and nails are livid. Cadaveric lividity is more marked and best seen within few hours of death. The tongue is protruded in most cases and the frothy and bloody mucus comes from the mouth and nostrils. Rigor mortis is usually slow to commence,but may be rapid in some cases. (b)Internal. The mucous membrane of the trachea and the larynx is cinnabar-red due to its injection and contains froth. The lungs are dark and purple in colour and gorged with dark venous blood. On being cut, they exude frothy, dark, blood stained fluid. The air-cells are distended or even ruptured due to emphysema. The right cavity of the heart is full containing dark coloured, imperfectly clotted blood, and so are the pulmonary artery and the venae cavae. The left cavity, the aorta and the pulmonary veins are empty. In many cases, both sides of the heart are found to be full. If examined soon after death but after rigor mortis has set in, the heart is found contracted and empty or the tension in the abdomen presses on the inferior vena cava and drives blood up into the heart. Similarly, the lungs are found heavier with the blood collected in the dependent parts if examined sometime after death, or the tension in the abdomen or contraction of the heart muscle will drive more blood into the lungs, irrespective of the cause of death. The brain is congested, but not so much as in death from coma. The abdominal organs are found congested. Numerous small petechial haemorrhages or ecchymoses known as Tardieu Spots are seen under the serous membranes of various organs due to rupture of the capillaries caused by increased pressure in them. These are usually round, dark and well-defined, varying in size from a pin's head to a small lentil. They are found under the visceral pleurae, pericardium, https://hcservices.ecourts.gov.in/hcservices/ endocardium, thymus, meninges of the brain and the cord, conjunctivae, epiglottis and even under the skin of the face, neck and eyelids. They are sometimes seen in deaths occurring from scurvy, pupura, haemophilia, bacterial endocarditis or coronary thrombosis. These must be distinguished from small postmortem haemorrhages in the conjunctivae or the skin of dependent parts due to gravity; usually they are more diffuse and even larger". 12. So far as the book 'Police : The Investigation of Violence' is concerned, the relevant portions are extracted below: "Suspecious injuries: Persons who are alive at the time of exposure to fire are certain to inhale fumes that endanger life,for not only is the vital oxygen that is needed to maintain life being consumed in the course of combustion, but a dangerous gas,carbon monoxide, is being generated -- whatever is burning. Occasionally, as when celluloid or X-ray films burn, fumes of nitric oxide are also generated. Most charred victims of fire die of asphyxia (from lack of well -oxy-generated air) and a high blood concentration of the fire-fume gas carbon monaxide--and it is comforting to know that, since a state of unconsciousness occurs at any saturation of 40% or over,they are unlikely to have experienced the excruciating pain of the burns that follow. Detection of carbon monoxide in the blood is absolute proof that life was present at the time of the fire--that the victim was breathing. Indeed, if the fire was a slow smouldering or smoky one,soot particles are also found in the nostrils, the throat and the air passages, giving proof visible to even the tyro at autopsy. To these accustomed to carbon monoxide inhalation deaths, one other change is equally obvious. The blood in which carbon monoxide has accumulated is a characteristic cherry pink--a colour which shows in the livid stains in the skin and in samples of blood from any part of the body, especially when it is diluted. A drop of blood, so diluted, can be compared with a similar specimen taken by pricking the finger of any member of the investigating team. When a fire is fierce from the start, the rapid lowering of the oxygen is the more important factor in causing asphyxia, but a smouldering fire will cause more smoke and the incomplete combustion will create more carbon monoxide. The blood saturation may rise as high as 60% or more at death when a long period of exposure to a slow fire is responsible. https://hcservices.ecourts.gov.in/hcservices/ It is sometimes suggested also that burns to the live body can be easily distinguished from those to the dead tissues, but this is not so. The live skin reddens and blisters on scorching, and the hairs shrivel and curl on burning. But so does the dead skin, and so do the hairs. Heat causes the cuticle to wrinkle and blister, for the temperature can be high enough to "boil" the dead fluid in the skin; and adjacent blood vessels may expand from the heat, to give a very similar appearance to that when the tissues are living. When charring follows from more severe burning, of course, the only proof life lies in the finding of inhaled soot or absorbed carbon monoxide. Either is sounder proof than the skin changes. Contraction: Penetrating heat may cook the muscles and cause them to shrink: the bulkier the muscle the greater the shrinkage, so that the stronger flexors of the arms and thighs exercise the greater "pull". The arms may flex, the hands clench and the thighs bend at the hip and the knee causing the well-known "pugilistic" attitude--suggesting that the victim might have been putting up a fight at the time of death. To make such an assumption can only reflect a lack of experience of fire injuries. This change can, of course, take place whether the body is dead or alive, but in either case it must not be made a cause for suspicion". 13. Learned Senior Counsel would then cite Section 113-B of the Indian Evidence Act wherein the presumption as to dowry death is defined and it is relevant to extract the section: "Presumption as to Dowry Death: When the question is whether a person has committed dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harrasment for; or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation: For the purpose of this Section "dowry death' shall have the same meaning as in Section 304B IPC. 14. Learned Senior Counsel would then cite three judgments reported in (i) 2004 SCC Criminal 1306 ( ) (ii) 1947 MWN Crl.45 (PULUKUIRI KOTTAYA AND OTHRS v. THE KING EMPEROR) and (iii) ((2001) MLJ (Crl.) 422); in the first judgment cited above, it is held as follows: https://hcservices.ecourts.gov.in/hcservices/ "... one of the essential ingredients, amongst others, in both the provisions i.e. Sections 304-B (IPC) and 113-B (Evidence Act) is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand for dowry". There must be material to show that soon before her death, the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case, the aforesaid presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formala can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of crulety is remote in time and has become stale enough not to disturb mental equilibirum of the woman concerned, it would be of no consequence." 15. In the Second Judgment cited above, the Honourable Privy Council has held: " S.27 Evidence Act provides an exception to the prohibition imposed by the preceding section and enables certain statements made by a person in police custody to be proved. The condition necessary to bring https://hcservices.ecourts.gov.in/hcservices/ the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. On normal principles of construction, the proviso to S.26 added by S.27 should not be held to nullify the substance of the section. It is fallacious to treat the fact discovered within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this; and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Any information which serves to connect the object discovered with the offence charged is not admissible under S.27. The difficulty however great of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification, for reading into S.27 something which is not there and admitting in evidence a confession barred by S.26. Except in cases in which the possession or concealment of an object constitutes the gist of the offence charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law." 16. In the third judgment cited by the learned senior counsel for the appellant, the honourable Apex Court has held: "The postulates needed to establish an offence under Sec.304-B IPC are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Sec.113-B of the Evidence Act, as a part of the said offence, the position is this: if the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances "the Court shall presume that such person https://hcservices.ecourts.gov.in/hcservices/ had caused dowry death". However, it is open to the accused to adduce such evidence for disproving the said compulsory presumption. If an accused was only asked to defend a charge under Sec.302 IPC and was alternatively convicted under Sec.304-B IPC without any notice to him, he is deprived of the opportunity to discharge the burden cast on him by law. In such a situation, if the trial Court finds that the prosecution has failed to