Narenderan vs State

S. Rajeswaran, J.—This Criminal Appeal is arising out of the conviction and sentence imposed by the Sessions Judge, Mahila Court, Tiruchirappalli in S.C. No. 169 of 2007. By Judgment dated 28.8.2008, the learned Trial Judge found this Appellant guilty for the offences punishable under Sections 302 & 201 I.P.C., convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs. 1,000/-, in default, three months'' Simple Imprisonment, for the offence under Section 302, I.P.C. The Appellant was also sentenced to undergo Rigorous Imprisonment for a period of three years with a fine of Rs. 1,000/- for the offences punishable under Section 201, I.P.C., in default, three months'' Simple Imprisonment was ordered.

The Appellant is Accused No.1 in the Sessions Case No. 169 of 2007. He was tried along with two other Accused for the offences punishable under Sections 498-A, 302 & 201, I.P.C. The learned Trial Judge acquitted all the three Accused from the offence under Section 498-A, and convicted the Appellant/Accused No. 1 for the offence punishable under Sections 302 & 201, I.P.C.

The facts of the case is that the Accused No. 1 and the deceased got married on 24.10.2004 at Valliyur Murugan Temple. At the time of marriage, PW3, the father of the deceased gave 21� sovereigns of gold to both his daughter/the deceased and son-in-law/the Accused No.1. Apart from the jewels, he also gave a Colour TV, Almirah, cot and other household articles. After the marriage, the deceased and the Accused No. 1 lived as a joint family along with the other Accused at Tiruchirapalli. They also lived separately at Ramanathapuram. The Accused/Appellant harassed the deceased to get a sum of Rs. 2 lacs for his business and due to that, there was a dispute between the Appellant and PW4 during valaigappu function held on 18.5.2005. On 30.7.2006, at about 11.45 a.m., the Appellant/Accused No. 1 informed PW2 to PW4 that his wife Sridevi is in a serious condition and he was taking her to the Hospital. After some time, he informed PW1 to PW4 that his wife Sridevi had died due to hanging. The Accused had also gone to the K.K. Nagar Police Station and given a Complaint before PW9 around 1.30 p.m. on 30.7.2006 the said Complaint was registered in Cr. No.373/06 under Section 174, Cr.P.C.

Since the deceased Sridevi had died in a suspicious circumstance within seven years of marriage, PW19 forwarded the FIR to the Revenue Divisional Officer, Tiruchirapalli and to the Assistant Commissioner. Cantonment Police Station The Complaint of the Accused was marked as Ex P11 and the printed FIR was marked as Ex P12.

PW21 was in charge of the Revenue Divisional Officer, Tiruchirapalli till 27.8.2006. On receipt of the FIR in Cr. No.373/06, he went to the Fort Hospital, Tiruchirapalli on 31.7.2006 and conducted the inquest. The Statement of the Panchayathars was recorded and marked as Ex P13. PW21 had also recorded the Statement from PW3, the father of the deceased and PW4 the brother of the deceased PW4 adopted the Statement of PW3. He also recorded the Statement of the Accused.

PW25 was working as the Assistant Commissioner/Prohibition, Excise, Tiruchirapalli. He was also in charge of the Cantonment Division. He received a copy of the FIR in Cr. No.373/2006 on 30.7.2006 at 2.30 p.m and referred the copy of the FIR to the Revenue Divisional Officer. He went to the place of occurrence at about 3.15 pm and prepared the Observation Mahazar-Ex.P3 and a Sketch-Ex.P18. He recovered MO1, Dhuppatta in the presence of PWS and another. He examined PW1, PW2, PW10 and PW8 and few other Witnesses and recorded their respective Statements. Thereafter he had altered the Section of law into Sections 498-A & 304-B, I.P.C. from Section 174, Cr.P.C. and sent the Express Report (Ex.P19) to the learned Judicial Magistrate, Trichy.

PW25 arrested the Appellant/Accused on 2.8.2006 at about 12.00 noon in Tiruchirapalli K.K Nagar Bus Stand and recorded his confession statement in the presence of PW19 and one Vijayakumar. He also recovered a sum of Rs. 2,500/- from the house of the Accused in the presence of the above Witnesses. He also examined PW16 and PW18 on 3.8.2006 and examined PW19, PW17 and PW22 on 4.8.2006. The other Witnesses were examined on 5.8.2006 and 6.8.2006. They received a Report from the Revenue Divisional Officer on 24.10.2006. After concluding his investigation, PW25 filed his Final Report as against the Appellant/Accused herein and two others for the offences punishable under Sections 498-A & 302 r/w Section 201, I.P.C. During the trial, the prosecution side had examined 25 Witnesses and marked 20 Documents and two Material Objects. When the incriminating circumstances arising from the testimonials of prosecution Witnesses were put to the Accused under Section 313, Cr.P.C., he had denied their evidences as false and filed a Written Statement under Section 233(2), Cr.P.C. The Appellant/Accused had also examined two Witnesses on his side and marked three documents.

In conclusion of the trial, the learned Trial Judge acquitted all the Accused from the charge under Sections 498-A, I.P.C., but convicted and sentenced the Appellant Accused No.1 to life imprisonment for the offence committed under Section 302, I.P.C. as stated supra.

Heard Mr. Veera Kathiravan, the learned Counsel appearing for the Appellant/Accused and the Additional Public Prosecutor appearing for the State. I have also gone through the documents available on record.

The question that arises for consideration is whether the conviction and sentence imposed by the learned Trial Judge is sustainable in law or not. The marriage between the Appellant/Accused and the deceased was solemnized on 24.10.2004. There was a strained relationship between the Accused and his in-laws. There was always a wordy quarrel between the First Accused and PW4 on account of demand of dowry during the Valaigappu function celebrated on 18.5.2005. The deceased died under suspicious circumstances on 30.7.2006 at about 11.30 a.m. The Accused had lodged a Complaint before the K.K. Nagar Police Station on 30.7.2006. Since the deceased died within seven years of marriage, the RDO, the PW21 had conducted the inquest.

The Doctors, who conducted the Post-mortem gave their opinion that the deceased appears to have died of cumulative effect of "ligature, strangulation and smothering".

The Counsel for the Appellant contended that the deceased had committed suicide by hanging. He referred to the evidence of PW12, PW14, PW15 and the defence Witnesses. PW14 and PW15 are the relatives of the Accused and they went to the Accused house on the fateful day and they Witnessed the deceased hanging in the room at the upstairs.

DW1 is the Doctor and she gave treatment to the deceased as an out patient on 23.3.2006. The deceased had been under treatment for her psychiatric problem on 9.4.2006, 9.5.2006, 10.6.2006 and 22.6.2006. The deceased had some illusions in her mind and she was taking medicines for the same. The prescription of the Doctor was marked as Ex.D3. DW1 further stated that a person suffering from psychiatric problem may have the tendency to commit suicide. PW12 a representative of an Ayurveda Medical Stores stated that he knows the First Accused for seven years and his wife was under treatment. The deceased had demanded sleeping pills and poison from the said Ayurveda Medical Stores at K.K. Nagar. The Ayurveda Medical Stores owner had referred this incident to PW12 and the Accused No. 1 the Appellant had replied that his wife the deceased had similar behaviour while they were residing at Ramanathapuram and the Accused had also given treatment to the deceased for the same.

Another friend of the Appellant/Accused No. 1 was examined as DW2. He also stated that the deceased was suffering from some mental disorder and she was taken to one Dr. Lenin of the Government Hospital at Ramanathapuram for the treatment. The Accused taken the deceased to Dr. Lenin in the month of March/April 2006 and the Doctor opined that the deceased could be cured by taking continuous treatment. At that time, the Accused had informed that the deceased was taking treatment at the Sea Horse Hospital. He further stated that whenever the First Accused had approached him, he was advising that the deceased had confused and that was why he referred to Dr. Lenin for treatment to be given to the deceased/his wife.

The learned Counsel appearing for the Appellant had also referred the evidence of PW16, the photographer and the evidence of Investigation Officer and contended that the deceased had committed suicide by hanging due to depressions and it is not a case of homicide.

The issue that has to be decided in this Appeal is whether the death of the deceased is due to homicide or suicide?

The Doctors, who have conducted the Post-mortem have noticed the following wounds:

Bruising around the nostrils present-Dark red.

Bruising of both lips present-Dark red.

Blood clots at the gums present and not washable.

A transverse, faint, ligature mark. 21cm x 3.5cm, on the front and sides of the neck at the level of thyroid cartilage on the front of neck, 4cm below the right angle of the mandible and below the left angle of the mandible and on the remaining part of the neck, the ligature mark is absent."

The Doctors have also noted blood discharge from both the nostrils and the Hyoid bone was in tact. No poison was detected.

The Doctors, who conducted the Post-mortem gave their final opinion in Ex.P10 that the deceased appeared to have died of cumulative effects of ligature, strangulation and smothering. According to the Doctors, the wounds mentioned above are anti-mortem.

With regard to strangulation, it is useful to refer to Modi''s Medical Jurisprudence and Toxicology, which reads as;

Internal and External Appearance:

(a) Ligature mark: Ligature mark is well defined and slightly depressed mark corresponding roughly to the breadth of the ligature usually situated low down in the neck below the thyroid cartilage and encircling the neck horizontally and completely. Besides these marks there may be abrasions and bruises on the mouth, nose, cheeks, forehead, lower jaw or any other part of the body, if there has been a struggle.

The non-fracture of the hyoid bone does not exclude strangulation as the cause of the death. The nature and magnitude of the force applied to the neck, the age of the victim, the nature of the ligature, material used to strangulate and the intrinsic anatomic features of the hyoid bone are factors.

The deceased died in her matrimonial house where she was residing with her husband. It has been consistently held that if the Accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong indication that he is responsible for the crime.

Section 106 of the Evidence Act reads as follows:

"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt. The Section would apply to cases where the prosecution had succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the Accused tailed to offer any explanation which might drive the Court to draw a different inference Section 106 of the Evidence Act was examined in detail by the Hon''ble Supreme Court in the State of West Bengal v. Mir Mohammad Omar and others, AIR 2000 SC 2988, where it is held as follows:

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the Accused should not be taken as a fossilised Doctrine as though it admits no process of intelligent reasoning. The Doctrine of Presumption is not alien to the above Rule nor would it impair the temper of the Rule. On the other hand, if the traditional Rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.

In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this.

Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a Rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a tact from other set of proved facts, the Court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114, is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct, etc. in relation to the facts of the case.

In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows:

"When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

The Section is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the Accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference.

Vivian Bose, J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the Accused. In Shambhu Nath Mehra v. State of Ajmer, 1956 SCR 199 : AIR 1956 SC 104 : 1956 Cri.LJ 794, the learned Judge has stated the legal principle thus:

"This lays down the General Rule that in a Criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are ''especially'' within the knowledge of the Accused and which he could prove without difficulty or inconvenience.

The word ''especially'' stresses that. It means facts that are pre-eminently or exceptionally within his knowledge."

In Trimukh Maroti Kirkan v. State of Maharashtra, 2006 (10) SCC 681, it is held as follows:

"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the Accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a Criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions, 1944 AC 315-quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh, 2003 (II) SCC 271. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this Section throws some light on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same Degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an Accused to offer any explanation."

The Accused herein lodged the Complaint-Ex.P11 before the Sub-Inspector of Police, K.K. Nagar Police Station on 30.7.2006. Ex.P11 was in fact registered in Crime No.373 of 2006. He also gave a Statement before the RDO/PW21 on 31.7.2006. After completion of the trial, he filed a Written Statement before the Trial Court under Section 233(2), Cr.P.C. On analysis of the three statements, we could find out the discrepancies in the statement of the Accused. In the statement given before RDO on 31.7.2006, the Accused had stated that on 30.7.2006, he went to the vegetable market along with his sister around 6.45 a.m and he returned around 9.50 a.m. He asked for a coffee from the deceased, the deceased said that she was going to take bath. All of them have taken tiffin together. The Accused was watching TV after taking tiffin. At that time, the deceased went and locked the room in the upstairs and had committed suicide by hanging. He further states that he had taken the deceased to one Balamurugan Hospital at Trichy and then to one Maruthi Hospital for further treatment where she was declared dead.

In his Complaint, Ex.P11, the Accused had stated that on 30.7.2006, he went, to the market in the morning and spent time with his wife and child His wife the deceased went to wash the clothes and he was watching the TV. Around 11.30 a.m., his relative PWI 4 and his wife came to their residence to give their daughter''s marriage invitation. His relatives wanted to see his wife and when he had gone in search of her in the bath room and the upstairs, he found that the room in the upstairs was found locked from inside. He knocked the door and since it was not opened, he broke open the door and found his wife hanging in the hook with a duppatta. He raised alarm and on hearing the same, his brother PW14, his aunt and the other Accused came to the upstairs. All of them have brought the deceased down and took her to Balamurugan Hospital where she was referred to Maruthi Hospital and when she was taken to the Maruthi Hospital she was declared dead.

In his Written Statement filed on 8.4.2008, under Section 233(2), Cr.P.C. before the Trial Court, the Accused had narrated the incident that on 30.7.2006, his aunt and her husband came to the house to give the marriage invitation of then daughter. He called his wife to introduce her to them, since they had not attended his marriage. Since there was no response from his wife, he went in search of her in the back yard. When she was not there, he verified with his mother and sister and they also replied that they were not aware of. Thereafter, he went to his room in the upstairs. It was found locked in side and he knocked the door and called her but she did not respond and therefore he broke open the door and found the deceased hanging near the cot. He then held her legs and raised alarm. On hearing the sound, his inmates and neighbours came and brought his wife down. They took her in an Auto-rickshaw to the Hospital where she was declared dead. These three Statements are self-contradictory to each other. This Statement also is contradictory to the Statements of PW14 and PW15.

PW4 is a close relative of the Accused and he was also a resident of Trichy. He came to the Accused house on 30.7.2006 around 10.30 a.m. The Accused and two others were there PW14 asked for the Accused about his wife and the Accused replied that she was in the bathroom. After some time, the Accused rushed to the upstairs. PW14 and the others have also followed him. They broke open the door and the deceased was found hanging. The Accused had taken her to Maruthi Hospital.

PW15 is also a close relative of the Accused and she is also residing at Trichy. She came to the house of the Accused on 29.7.2006 and intended to stay for two days. On 30.7.2006 around 10.00 to 10.30 a.m., her uncle PW14 and his wife came to the Accused house for giving marriage invitation. The deceased Sridevi was cooking with her in law in the kitchen. After having the break fast, they were watching TV and the deceased went to the backyard for washing the clothes PW14 asked for the deceased tor giving the invitation. PW15 informed the Accused that the deceased was washing the clothes in the back yard. The Accused went and saw the backyard and then went to the upstairs. There the door was locked and when it was broke open they found that the deceased was hanging. They brought her down. Saliva was coming out of the deceased mouth and PW15 cleaned the same. The Accused had cut the rope and then taken her to the Hospital. She was brought dead from the Hospital PW15 had further stated that the deceased has stated she is not having any interest for living and asked for the medicine to commit suicide.

According to PW15 it was a rope which was used for hanging and it was cut and the deceased was rescued. But the Accused says it was MO1 Dhuppatta used by the deceased for hanging.

The Doctor, who conducted the Post-mortem gave his opinion that the deceased appears to have died of cumulative effect of ligature, strangulation and smothering. Regarding,the wounds noted by the Doctors, a suggestion was made on behalf of the Accused to the Doctor PW18 that the injuries 1 to 3 were possible if the deceased was hit by any other object. Excepting this suggestion there is no other explanation from the Accused for the injuries sustained by the deceased.

(i) From the evidence of the Doctor it is found that the deceased died due to homicide.

(ii) The Accused was with the deceased when the deceased was found dead.

(iii) There was a strained relationship between the deceased and the Accused.

(iv) Contradictions in the statements of the Accused and in the evidence of PW14 and PW15.

(v) No explanation for the deceased injuries.

(vi) The locks were found in tact.

From the above said facts, a reasonable inference can be drawn against the Appellant for the death of the deceased and there is no reason to reverse the Order of the Trial Court.

In the result, the conviction and sentence imposed by the Trial Court is confirmed and the Appeal is dismissed.