State vs Subramaniam <BR>K. Muthusamy Vs Subramani and State

R. Balasubramanian, J.

In this appeal, the State is challenging the judgment dated 14.11.2000 in S.C. No. 126 of 2000 on the file of II Additional Sessions Judge,

Erode acquitting the sole accused of offences u/s 498A I.P.C. Section 4 of the Dowry Prohibition Act and Section 302 I.P.C. Aggrieved over the

acquittal of the accused, P.W.1 in that Sessions Case is before this court in Crl.R.C. No. 264 of 2001. As both cases arise out of the same

Sessions Case, we are inclined to dispose of both the cases by this common judgment. Heard Mr. V.M.R. Rajendran, learned Additional Public

Prosecutor for the State in the appeal; Mr. N. Manokaran, learned counsel appearing for the petitioner in the revision petition and Mr. P.M.

Doraisamy, learned counsel appearing for the accused in both the cases.

The case of the prosecution is (as per the charge) that in the context of dowry demand, the accused was treating his wife cruelly (Section 498A

I.P.C); also subjected her to the demand of dowry prohibited u/s 4 of the Dowry Prohibition Act and in continuation there of, murdered her on the

midnight of 26.5.1999 by smothering her with a pillow, resulting in death due to asphyxia. We summarise hereunder the case of the prosecution:

P.W.3 is residing close to the house of the accused and he knows the accused as well as his wife. He is also aware about their marriage.

According to him at about 11.00 p.m. on 26.5.1999 when he was in his house, the accused came there and woke him up. At that time, he

informed P.W.3 that as his wife had consumed poison, she must be taken to the hospital and for that purpose he wanted his help. P.W.3

immediately went to the house of the accused in his motor-cycle where he found Baby alias Sokkayee (wife of the accused, since deceased) lying

dead. He also noticed froth coming out of her mouth. He tried to find out whether there was any smell of any insecticide from her mouth and other

places and he found no smell. Then he went to the house of P.W. 1 - Sokkayee''s father and informed P.Ws.1 and 2. When questioned by them,

he said that the accused informed him that his wife died by consuming poison and that his examination did not reveal the use of any insecticide and

therefore he had a doubt. P.Ws.1 and 2 are the father and mother of the deceased. On receipt of information at about 11 p.m. on the occurrence

day from P.W.3, P.W.1, along with his relatives proceeded to the Village Ennamangalam, where his daughter was living. There he found his

daughter lying dead in a cot. He then went to the police station and lodged Ex.P.1, the complaint. He was examined by the police as well as the

Tahsildar. P.W.2 is the wife of P.W.1 and mother of the deceased. Her evidence about the information given by P.W.3 to P.W.1, is on the same

lines as spoken to by P.W.1 himself. However, according to her, P.W.3 came home around 1.00 a.m. on that day. Then her evidence as to what

happened thereafter is as spoken to by P.W.1.

2.1 P.W.1 1 is the Sub Inspector of Police in the investigating police station. At about 11.00 a.m. on 27.5.1999, P.W.1 appeared before him and

gave a written complaint, which he registered in Crime No. 170 of 1999 u/s 174 of the Code of Criminal Procedure Ex.P.8 is the printed First

Information Report. He informed over telephone to the Deputy Superintendent of Police, Bhavani and as instructed by him, he reached the scene

of occurrence with the printed First Information Report and he assisted the Deputy Superintendent of Police in the investigation. P.W.13 is the

Deputy Superintendent of Police. On receipt of information over telephone from P.W.11 and the printed first information report, he reached the

scene of occurrence at 1.00 p.m. on that day. In the presence of P.W.6 and another, he prepared Ex.P.3, the Observation Mahazar and Ex.P. 12

the rough sketch. He caused photographs of the scene of occurrence to be taken. P.W.7 is the photographer, who took photographs of the scene

of occurrence. M.O.3 series are the photographs and M.O.4 series are the negatives. P.W.13 then recovered from the scene of occurrence, a

pillow covered with a pillow cover M.O.2 and an empty insecticide box Demacron M.O.1 under Ex.P.2 attested by the same witnesses. He

examined P.Ws.1, 2, 3 and others and recorded their statements. P.W.12 is the Tahsildar of Bhavani during the relevant time. On instructions from

the Revenue Divisional Officer on 27.5.1999 that a murder had taken place in En-namangalam Village and that he must enquire into it, he went to

the scene of occurrence after sending an advance notice to P.W.6, the Village Administrative Officer. Enroute, he saw P.W.6 and his Menial and

all of them proceeded together to the Village. P.W.13 was also reaching the scene of occurrence separately and all of them reached the scene

simultaneously. P.W.12 observed the dead body and examined P.Ws.1 and 2 and recorded their statements. He examined P.W.3 and others and

recorded their statements. Then in the presence of five Panchayatdars, whom he had examined, P.W.12 conducted inquest over the dead body.

Ex.P.9 is the inquest report. His final report is Ex.P.10. Then he handed over the dead body to the police with a requisition for post-mortem to be

done at the Government Hospital, Andiyur. Ex.P.5 is the requisition given by him. Ex.P. 11 is the requisition given by him to subject the viscera of

the deceased for chemical examination.

2.2. P.W.13 continued the investigation and on receipt of the report given by P.W.12, he altered the section of offence from one u/s 174 of the

Code of Criminal Procedure into one u/s 304-B of the Indian Penal Code. Ex.P.13 is the altered First Information Report. He arrested the

accused at 2.00 p.m. on the same day in the bus stand at Sankarapalayam and brought him to the police station at 3.00 p.m., where he was

searched. Then he was sent to judicial remand. On 25.7.1999 he submitted a questionnaire to the Doctor, who did post-mortem on the dead

body. On 2.8.1999 he examined P.W. 10 - the Doctor, who did post-mortem and others and recorded their statements. He obtained the final

opinion from the Doctor on the cause of death. Then when the accused came to sign in the police station in complying with the condition of bail

granted to him on 22.8.2000, he examined him and at that time, he gave a voluntary confession statement. P.W. 13 was then transferred.

2.3 P.Ws.4 and 5 are examined to speak about their participation in the compromise stated to have been mooted at the instance of the accused in

the house of P.W.1 to bring back the deceased to the fold of the accused. P.W.6 is the Village Administrative Officer, who witnessed the

preparation of the Observation Mahazar and the recovery of the material objects M.Os. 1 and 2 under Ex.P.2. Ex.P.3 is the Observation

Mahazar, the preparation of which, he witnessed. P.W.8 is the police constable in the investigating police station who carried the material records

to the office of the Revenue Divisional Officer, Gobichettipalayam on 27.5.1999 as well as to the District Police Office. P.W.9 is another Grade II

Police Constable in the investigating police station, who accompanied the dead body for post-mortem. He was present throughout post-mortem

and after post-mortem he removed M.Os.5 to 12 from the dead body under Ex.P.4 and handed over the same to the investigating officer.

2.4 P.W. 10 is the Doctor, who did post-mortem on the dead body and she commenced post-mortem at 9.00 a.m. on 28.5.1999 on receipt of

Ex.P.5, the requisition for post-mortem. During post-mortem she found various symptoms as noted in Ex.P.6, the post-mortem report. The

symptoms noted by her are as hereunder.

Appearances found at the post-mortem:

Moderately nourished, female lies on the back, arms close to sides, lower limbs extended hair black, skin pale, eyes closed, lips swollen, frothy

fluid discharge of blood from mouth and nose. Abdomen distended.

External Injuries:- N I L.

Internal:

Abdomen distended.

Thorax - Normal. No fracture of ribs.

Heart - Normal. 180 gms. Empty.

Blood red colour.

Lungs - Normal (R) - 500 gms. (L) - 450 gms. Cut Section congested.

Larynx, Glotti, Trachea -Normal.

Stomach distended contained partially digested rice particles 300 gms. Brown coloured.

Oesophagus - Normal.

Liver - Normal. 1300 gms. Cut section congested.

Gall Bladder - full. Normal.

Spleen - Normal. 150 gms.

Kidneys both 160 gms. Normal. Bladder full.

Uterus - 28 weeks. Opening - a 28 week size dead male baby.

Pelvis - Normal.

Head - Normal.

Membranes - Normal.

Brain - Normal. 1200 gms.

Viscera preserved for chemical analysis.

The viscera report is Ex.P.7 and it shows that no poison was detected in the viscera of the deceased. P.W.10 gave the final opinion on 2.8.1999

on receipt of Ex.P.7 the viscera report that the deceased would appear to have died 28 to 36 hours prior to autopsy and death is due to asphyxia

- may be due to smothering.

2.5 P.W.14, who succeeded P.W.13, verified the investigation already done by his predecessor and examined the photographer and recorded his

statement. Then he filed the final report in court against the accused for offences u/s 4 of the Dowry Prohibition Act and Sections 498A and 302

I.P.C. When the accused was questioned u/s 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available

against him, he denied each and every circumstance put up against him as false and contrary to facts. Neither oral nor documentary evidence was

brought before court at his instance. However he had filed a written statement contending in substance as hereunder:

At the time of marriage, I have not asked for any dowry; as per our custom, I only gave her a chain with the Mangal Sudra; my in-laws were not in

a position to give any dowry at the time of marriage, 1 have also not asked for anything and 1 was not expecting anything also; I lived with my wife

happily and she delivered a child in Sakthi Sugars Hospital, Appakudal; the entire hospital expenses were met by me; then 1 came home with my

wife and child; my wife again conceived and 1 was living happily with my wife and parents; on the night of 26.5.1999, I went to the lands to irrigate

and when I returned home at 5.00 a.m., 1 found my wife lying dead; I informed every one; my in laws compelled me that 1 should settle my

properties on my daughter, which 1 refused saying that I will take care of my child; the case is foisted upon me and 1 am innocent.

Learned Additional Public Prosecutor would argue stating that the acquittal of the accused of all the offences for which he was tried is opposed

to the legal evidence available on record. Stating that he is fully aware about the powers of the court in hearing an appeal against an acquittal

learned Additional Public Prosecutor would still submit that from the evidence available on record, it is not possible to hold that the accused is

innocent. On the other hand, according to him, the evidence on record unerringly points out to the guilt of the accused and his guilt alone and there

is no other hypothesis possible on such evidence. Therefore his submission is that when the only conclusion that can be drawn on the legal evidence

is that the accused is guilty, the judgment of acquittal based on surmises and conjunctures have to be necessarily interfered with. In stating that the

evidence of the prosecution witnesses unerringly points out to the guilt of the accused, learned Additional Public Prosecutor took us through the

evidence of P.W.3 on its own merits; the evidence of P.Ws.1 and 2 as a block evidence on their own merits and the evidence of P.Ws.4 and 5 as

block evidence on their own merits. According to him, the evidence of P.Ws.1 and 2 and the evidence of P.Ws.4 and 5 establish beyond doubt

that all is not well between the accused and his wife and therefore their evidence definitely shows that the accused had a motive to kill his wife.

Their evidence also shows, according to the learned Additional Public Prosecutor, that there was a panchayat in which the problem between the

accused and his wife were attempted to be sorted out and only as an outcome of such sorting out, the deceased came to live with her husband,

where a few days thereafter, she lost her life under suspicious circumstances. The medical evidence also clinchingly establishes the cause of death

and when the death had taken place in the house of the accused himself and when he had come out with a false explanation that she died by

consuming poison, this court can very well hold that when the accused has a duty to explain and when he comes out with a false explanation that

itself would act as a chain of circumstance to complete the prosecution case. The evidence of P.Ws.1 and 2 also shows that the prosecution had

established the guilt of the accused in respect of offences u/s 498-A I.P.C. and Section 4 of the Dowry Prohibition Act.

In answering these points, Mr. P.M. Doraisamy, learned counsel appearing for the accused would submit the following:

The case of the prosecution that the accused told P.W.3 that his wife died by consuming poison stands excluded by the medical evidence.

Therefore falsity is writ large even at the threshold of the prosecution case and if it is so, P.W.3''s evidence cannot be believed. The accused had

elicited in the cross examination of P.W.13 that P.Ws.1 and 2 do not disclose to him during investigation about any demand in the context of

dowry stated to have been made by the accused and therefore the acquittal of the accused of offences u/s 498A I.P.C and Section 4 of the Dowry

Prohibition Act cannot be interfered with. According to him on the evidence available, if two views are possible (learned counsel would state only

one view is possible and that view is acquittal) then this court would not interfere with the judgment of the Trial Court in acquitting the accused.

This argument is pressed into service only in the context of the acquittal of the accused of offences u/s 498A I.P.C. and Section 4 of the Dowry

Prohibition Act. As far as the offence of murder is concerned, learned counsel appearing for the accused would submit that M.O.2, the pillow

stated to have been used in smothering the wife to death do not have blood stain, which would be a normal sequence of event, especially when the

medical evidence shows frothy fluid discharge of blood from the mouth and nose. Therefore the absence of blood stain or any other stain in the

pillow, would exclude the use of the pillow itself. If that is so the prosecution must establish what are the materials the accused had used in

smothering his wife to death. Learned counsel would then contend that the medical evidence relied upon by the prosecution is not a substantive

evidence by itself on the facts of this case and therefore the prosecution must have let in corroborative evidence to show that the deceased was

done to death by smothering, which is totally lacking in this case. Therefore, according to the learned counsel for the accused, this court cannot

convict the accused for the offence of murder only on the medical evidence alone. It is his further submission that a careful perusal of the evidence

of P.W.10 -the Doctor who did post-mortem, would definitely show that all the symptoms which are normally found in the case of death due to

asphyxia by smothering are wanting in this case and therefore the benefit of the absence of such symptoms on the dead body should be given to the

accused, which would enable this court not to interfere with the judgment of acquittal. Learned counsel for the accused would then submit that the

evidence on record shows that the police was present at the scene of occurrence long prior to 11 a.m. on 27.5.1999 when Ex.P.1 had come to be

registered and this only shows that there must have been an earlier information to the police which had been suppressed in this case, since if it is

produced, it would run contra to the case of the prosecution as projected now. Therefore the submission is that Ex.P. 1 must be disbelieved and if

it is disbelieved, the Court must necessarily hold that there is suppression of truth. If the origin of the case is doubted, learned counsel would submit

then the whole prosecution case would fall to the ground.

Let us now examine the factual scenario available in this case. Admittedly there is no direct evidence to the occurrence proper. The prosecution

therefore relies upon only circumstantial evidence to connect the accused with the crime. The accused is the husband of the de-^ ceased, is not in

dispute at all. The deceased died in the house where the accused was living, is not only established by the prosecution by examining P.W.3 but the

accused also had admitted in his written statement filed, at the end of his 313 questioning, that when he came home at 5.00 a.m. he found his wife

lying dead. Therefore the following facts stand established namely, ""the accused is the husband of the deceased and his wife died in his house."" The

prosecution placing some circumstances before court would contend that the circumstance/circumstances so placed unerringly points out to the

guilt of the accused and the accused alone and not to any other hypothesis. Before proceeding further, we would like to advert to the medical

evidence available on record to find out whether the prosecution had established the cause of death. P.W.10 is the Doctor, who did post-mortem

on the dead body. Ex.P.6 is the postmortem report. P.W.10 in her evidence in court had stated that death is due to asphyxia. The viscera of the

deceased were preserved for being subjected to chemical analysis. Ex.P.7 is the viscera report and it shows that no poison was detected in any of

the viscera of the deceased. On that report and on the symptoms already noted during post-mortem, P.W.10 had given her final opinion on the

cause of death as ""the deceased would appear to have died 28 to 36 hours prior to autopsy and death is due to asphyxia - may be due to

smothering."" For the present we conclude that the medical evidence shows that Sokkayee died due to asphyxia and the mode adopted to cause

asphyxia is by smothering. Learned counsel appearing for the accused would contend that since the symptoms which are usually available in a case

of death due to asphyxia by smothering are absent in this case, the prosecution failed to establish the cause of death. We will advert to this aspect

in the later portion of this judgment.

P.W.3 is a close neighbour to the accused. He being a close neighbour is not even disputed by the defence. His evidence is that at about 11.00

p.m. on 26.5.1999 when he was sleeping, the accused came to his house and woke him up stating that as his wife (since deceased in this case) had

consumed poison, she must be taken to the hospital. P.W.3 would then state that on such information, he proceeded to the house of the accused in

his motor-cycle; observed Sokkayee; found her dead; froth coming out of her mouth and he could not smell any poison from her mouth. Then he

would state that he went to the house of P.W.1 - the father of the deceased and gave the information, who in turn lodged the complaint with the

police and thus the Law was set on motion. Therefore it is clear that P.W.3 is not an eye witness to the occurrence and he had been examined to

the limited extent of the accused waking him up around mid-night on 26.5.1999 and telling him that his wife needs medical attention immediately

since she is suspected to have consumed poison. P.Ws. 1 and 2 are also not eye witnesses to the occurrence. As we have already stated, the

prosecution did not say that their case is based on direct evidence regarding the occurrence proper. Therefore we have to necessarily decide, as

noted earlier, whether the prosecution had placed the circumstance/circumstances which unerringly points out to the guilt of the accused alone and

not to his innocence.

The charge against the accused is u/s 4 of the Dowry Prohibition Act and Sections 498A and 302 I.P.C. The evidence regarding the offences

u/s 498A I.P.C. and Section 4 of the Dowry Prohibition Act is attempted to be established by the prosecution by examining P.Ws.1 and 2 - the

parents of the deceased and P.Ws.4 and 5 - mediators. The learned Trial Judge acquitted the accused of all the offences. We will now find out

from the materials available on record as to whether the acquittal of the accused by the Sessions Judge of offences u/s 498-A I.P.C and Section 4

of the Dowry Prohibition Act warrants interference. Ex.P. 1 is the complaint given by P.W. 1 to the police. There he had mentioned that at the time

of his daughter''s marriage he had given her 11 sovereigns of jewellery and a sum of Rs. 7,000/= as cash towards dowry. He had also stated that

he had provided his daughter with other things within his limits. If is also found stated in Ex.P. 1 that after the marriage, the accused was harassing

his wife in the context of dowry demand and sent her to her parental abode to get the remaining 5 sovereigns of jewellery or its equivalent in cash

and that the deceased had conveyed that message in tears to his father. It is also found stated in Ex.P. 1 that on such cry by his daughter, he had

convinced his son-in-law/the accused that as he is not well off at that time, he would meet the demands of the accused later and till such time the

accused should accept his daughter magnanimously and give her a life. Therefore it is clear to us that in Ex.P.1 necessary foundation had been laid

for the charges against the accused for offence u/s 498A I.P.C. and Section 4 of the Dowry Prohibition Act. In other words, the demand for

dowry at the time of marriage and after marriage and subjecting the deceased to cruelty in the context of dowry demand, stand disclosed in Ex.P.

It is needless to state that Ex.P. 1 is not substantive evidence. Unless the party complaining such illegal acts on the part of another person proves

that allegation in court, no court can find the accused guilty of such offence. It is true that P.Ws.1 and 2 had spoken in court about the dowry

demand made by the accused and the cruelty to which the deceased was subjected to by the accused in the context of dowry demand. P.W.4 also

had stated in his evidence that he had come to know that there was some problem between the spouces, since the deceased was not provided

with the remaining 5 sovereigns of jewellery. P.W.5 in his evidence would state that the accused told him that there is often problem between him

and his wife and on that basis he requested P.W.5 to unite the deceased with the accused. In turn when P.W.5 asked the deceased as to what is

the problem about, she had told him that the problem is in the context of dowry demand. Therefore there is some evidence in court in the form of

the evidence of P.Ws.1, 2, 4 and 5. But the question is whether their evidence inspires the confidence of the court. Even at this stage, without any

hesitation we are inclined to hold that it does not inspire our confidence and the reasons are as hereunder:

P.W.12 is the Tahsildar, who conducted inquest over the dead body since death is shown to have occurred within a period of seven years from

the date of marriage. In his evidence in chief, he did not say anything about P. Ws. 1 and 2 or anybody else disclosing demand of dowry made by

the accused and subjecting his wife to cruelty in that context. However in his evidence in cross he had admitted that P.W.1 did not tell him, when

examined, that the accused demanded 16 sovereigns of jewellery. He had also admitted that P.W.1 did not tell him that the accused wanted a

promissory note in his favour to be executed by him since he was not satisfied with the answers given by P.W.1 in not providing the entire

jewellery. His evidence also shows that F.W.1 did not tell him that the deceased was beaten by the accused, finding fault with her father not giving

money, though he had executed the promissory note. P.W.12 had also admitted in his evidence in cross that P.W.2 did not tell him, when

examined by him that the accused demanded 16 sovereigns of jewellery at the time of marriage and the deceased was beaten on the ground that

money is not forthcoming, though there is a promissory note. P.W.12 would also admit that P.W.2 did not tell him when examined that the

deceased came home and showed the injury on her person. Therefore from the above evidence of P.W.12 we have our suspicion as to whether

the accused is guilty of making a demand for dowry and subjecting his wife to cruelty in that context.

In addition to the above materials available in the cross examination of P.W.12, we have still more evidence available in favour of the accused in

the cross examination of P.W.13, the Deputy Superintendent of Police/Investigating Officer. In his cross examination he had admitted as

hereunder:

P.W.1 in his examination did not tell me that the accused and his family wanted 16 sovereigns of jewellery; P.W.1 told me that they voluntarily

gave 11 sovereigns of jewellery and Rs. 7,000/= cash; P.W.1 did not tell me that the accused not satisfied with the answers given by him that his

claim would be met later, wanted a promissory note; on the other hand, P.W.1 had stated that as he was having no funds, he had executed a

promissory note on his own; P.W.2 did not tell him that the accused wanted 16 sovereigns of jewellery to be given; the accused did not even say

so much jewellery must be given to his wife; P.W.2 had stated that on their own they gave 11 sovereigns of jewellery and Rs. 7,000/= cash; her

husband, since he had not paid the money, had gone to the house of the accused and executed a bond and the accused had taken his signature in a

blank paper and she did not tell that the deceased told her that the accused was assaulting her in the context of money not forthcoming though

there is a promissory note.

Therefore the persons competent to speak about the demand by the accused and the accused subjecting his wife to cruelty in the context of dowry

demand are P.Ws.1 and 2 only. In view of their failure to disclose those information either to P.W.12 when they were examined or to P.W.13, the

Deputy Superintendent of Police/the investigating officer, we are of the considered opinion, that their evidence before court for the first time,

cannot be taken as a safe evidence to be acted upon for giving a conviction. The learned Trial Judge, in considering the case of the prosecution u/s

498A I.P.C. and Section 4 of the Dowry Prohibition Act had gone through the entire materials on record and gave reasons for not accepting the

prosecution case. The reasons in short are as hereunder:

The failure (as noted by us) in disclosing the relevant materials in the context of dowry demand to P.W. 12 and P.W.13 had been taken note of;

the accused himself had met the entire medical expenses when his wife delivered the first child; the deceased conceiving another child indicating

thereby that husband and wife might have been living happily and therefore their evidence is not convincing enough to render a conviction against

the accused for offences u/s 498A I.P.C. and Section 4 of the Dowry Prohibition Act.

It is a settled position in law that the Appellate Court exercising power in hearing an appeal against the acquittal would not normally interfere with

the findings rendered by the Trial Court in favour of the accused, unless it is seen that the findings of the court below are wholly unreasonable or

perverse and not based on the evidence on record, or suffer from serious illegality including ignorance or misreading of evidence on record. This is

what the Supreme Court had laid down recently in the judgment reported in State of Karnataka Vs. K. Gopalakrishna, . It is also a settled position

in Law that if two views are reasonably possible and the view favouring the accused is accepted by the court below, then it is sufficient for

upholding the order of acquittal, (see the above referred to judgment). Applying the Law laid down by the Supreme Court when we went though

the entire evidence on record as far as offences u/s 498A I.P.C. and Section 4 of the Dowry Prohibition Act are concerned, we do not find that

the Trial Judge had committed any error at all either on Law or on facts in acquitting the accused. We do find that the relevant materials have

entered the mind of the learned Trial Judge in analysing the prosecution case, so far as it relates to the charge u/s 498A I.P.C. and Section 4 of the

Dowry Prohibition Act and we are not in a position to say that the said finding rendered by the learned Trial Judge in respect of those offences are

perverse or opposed to the legal evidence on record. Therefore finding it very difficult to take a different view than the one taken by the learned

Trial Judge when he acquitted the accused of offences u/s 498A I.P.C. and Section 4 of the Dowry Prohibition Act, we are not inclined to

interfere with the said acquittal in respect of those offences alone.

Still the acquittal of the accused of the offence of murder survives for consideration. The case, as already stated, rests on circumstantial

evidence. As early as 1984 the Supreme Court had laid down the Law as to what should be the proof which the court should look for, in a case of

circumstantial evidence. The judgment is reported in Sharad Birdhichand Sarda Vs. State of Maharashtra, . We restate the points laid down by the

Honourable Supreme Court in that judgment as to what the prosecution must prove in a case where they rest on circumstantial evidence.

The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial evidence:

(1) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ""may be"" fully established,

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on

any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the

accused and must show that in all human probability the act must have been done by the accused.

The Law thereafter had been consistent on the above points and therefore, we do rot dwell upon the later case laws.

Therefore the question is what is the circumstance the prosecution had placed before the court, which unerringly points out to the guilt of the

accused? We began this judgment by stating that the relationship between the accused and the deceased stand established; the wife of the accused

died in his house and the cause of death is due to asphyxia. The prosecution had recovered M.O.2, the pillow from the house of the accused. The

recovery of M.O.2 is not even disputed. The prosecution case is that by using the pillow, the accused smothered his wife resulting in her death. We

now go to the evidence of P.W.10 to find out whether the prosecution had established that death is due to asphyxia by smothering. The symptoms,

among others, noted by the Doctor in the post-mortem report Ex.P.6 are ""lips swollen; skin pale; frothy fluid discharge of blood from the mouth

and nose; no external injury was noted and hyoid bone was found to be normal"". It is also seen that a twenty eight weeks foetus was found in the

uterus of the deceased. In her evidence in chief, the Doctor had categorically stated that if a person while sleeping is smothered by a pillow like

M.O.2, there is a possibility of the lips getting swollen and the victim suffering suffocation. She had also stated in her examination in chief that if

there is suffocation there is a possibility of the foetus to suffer. She had also stated that suffocation would affect the lungs, resulting in bleeding

through mouth and nose. In her evidence in cross she had been asked about the various symptoms that would be normally found in a case of death

due to asphyxia by smothering and she gave answers about those symptoms as well. But those symptoms spoken to by her in her evidence in

cross are not noted in this case and she admits that. But however she would add, because of the absence of those usual symptoms, it cannot be

said that death is not due to asphyxia by smothering. She had added that if death had taken place instantaneously, those usual symptoms would not

be available. In this context, we went through Modi''s Medical Jurisprudence and Toxicology (Twenty-third Edition) page 590 under the heading

SUFFOCATION"". One of the types of suffocation stated to be in that text book is ""Smothering or closure of the Mouth and Nostrils"". At page

594 the author had stated under the headings

(a) ""Appearance due to the cause producing suffocation"" that no local science of violence will be found, if a soft cloth or pillow has been used to

block the mouth and nostrils.

(b) Appearance due to asphyxia, the author has stated that ""bloody froth comes out of the mouth and the nostrils.

The Honourable Supreme Court of India in the judgment referred to supra had held that it is not always possible to find all the features in a given

case, particularly, in a case where the body is burnt after killing. In that case the High Court found that some of the features which are found in the

case of death by strangulation were not found. Only in that context, the Supreme Court said so. Therefore on a reading of the evidence of P.W.10;

the symptoms noted in the post-mortem report; the authoritative book of Modi''s Medical Jurisprudence and the judgment of the Supreme Court

referred to earlier, we are of the firm opinion, though some of the usual symptoms that would be available in the case of death due to asphyxia by

smothering are wanting, yet, on the availability of some of the symptoms as noted in the post-mortem report which are found stated as symptoms in

the text book of Modi, that the prosecution had established the cause of death. In other words, we hold positively that the prosecution had

definitely established the cause of death.

Now let us examine whether the prosecution had established their case. We are fully aware of the fact that in a case resting on circumstantial

evidence, the prosecution must initially prove the necessary circumstance and if so proved, any false explanation given by the accused, may be

taken as lending assurance to the prosecution case. In Sharad Birdhichand Sarda Vs. State of Maharashtra, the Supreme Court had an occasion

to consider what would be the effect of a false plea taken by the accused in deciding the case of the prosecution resting on circumstantial evidence.

The said judgment is by a Three Judges Bench. In para 159, the Supreme Court had stated as hereunder:

It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an

additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before the false explanation

can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved,

(2) the said circumstance points to the guilt of the accused with reasonable definiteness, and

(3) the circumstance is in proximity to the time and situation.

In the above paragraph, the Supreme Court had laid down that before a false explanation can be used as an additional link the essential conditions

mentioned therein must be satisfied namely, the prosecution must establish all the circumstances which constitute a chain.

In Kuldeep Singh and Others Vs. State of Rajasthan, - again a judgment rendered by a Three Judges Bench of the Supreme Court, it was held

that false explanation given by the accused provides a missing link in the circumstances. It refers to the two earlier judgments of that court reported

in Swapan Patra v. State of West Bengal, (1999) 9 SCC 242 and State of Maharashtra Vs. Suresh, . We extract para 18 of the above referred to

judgment:

In the case of Swapan Patra v. State of West Bengal it has been held that if is a well settled principle that in a case of circumstantial evidence when

the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to

complete the chain. The same principle is reiterated in the case of State of Maharashtra v. Suresh. In this case it has been held that a false answer

offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It is held that in a

situation like this a false answer can also be counted as providing ""a missing link"" for completing the chain.

Therefore the position of Law is very clear namely, in a case resting on circumstantial evidence, the prosecution must place all the necessary

circumstances constituting the chain, which unerringly points out to the guilt of the accused and the accused alone and if such chain is established,

then the Court would not be committing any mistake in taking a false plea/explanation given by the accused as one lending assurance, giving the

missing link"" to the case of the prosecution. In this case death had occurred in the house of the accused himself.

Learned counsel appearing for the accused by relying upon the judgment of the Supreme Court reported in 2005 S.C.C. (Cri.) 1225 (State Of

Andhra Pradesh v. Patnam Anandam) would contend that the information stated to have been given by the accused to P.W.3 on the mid night of

26.5.1999 that his wife needs immediate medical attention, as she had consumed poison, is in the nature of hearsay evidence and therefore it

cannot be looked into. We extract hereunder para 10 of the said judgment.

The next significant circumstance is the fact that the respondent had given a wrong information about the cause of death of the deceased. It is no

doubt true that the medical evidence conclusively establishes the fact that the deceased was battered by a hard and blunt object and her neck was

pressed with such force that even the hyoid bone was fractured. However, the statement made by P.W.1 to the Sarpanch, P.W.11 that his son

had informed him that the deceased had died after consuming pesticide, is not admissible in evidence, being hit by the rule against hearsay. This

circumstance cannot, therefore, be relied upon by the prosecution to prove that the respondent had given a fake explanation for the death of the

deceased.

We hasten to add that we are not relying upon the so called information stated to have been passed on by the accused to P.W.3 on the mid-night

of 26.5.1999 that as his wife had consumed poison, she needs medical attention, for the purpose of deciding the prosecution case. On the other

hand, we have the statement filed by the accused himself at the end of his 313 questioning, about which we have already referred to earlier and

again we will refer later on, after deciding whether the prosecution had established the circumstances from which it could be held that the accused

and the accused alone is guilty. At this stage we want to say that P.W.3''s evidence establishes beyond doubt that the accused woke him up at

11.00 p.m. on 26.5.1999.

In a case resting on circumstantial evidence, motive plays a relevant part. In Om Prakash @ Raja Vs. State of Uttaranchal, , which is a case

arising on circumstantial evidence, the Supreme Court has held that the Court would not be concerned with the sufficiency or otherwise of the

motive, which would have prompted the appellant to commit the crime and the correctness of conviction cannot be tested on the touchtone of lack

of sufficient motive, if the evidence establishes beyond reasonable doubt that the accused committed the crime and such evidence is available in

abundant measure in that case. Therefore our aim is to find out whether there is any motive for the accused in this case to kill his wife. The

evidence of P.Ws.1 and 2 would show that all is not well in the married life of their daughter/the deceased and the accused. According to their

evidence their daughter had been complaining to them that she was not treated well. Except concentrating in the cross examination of this witnesses

in the context of dowry demand, we do not find any answers worth mentioning, having been elicited that the deceased was not subjected to any

cruelty at all. In fact P.W.1 in his evidence in cross would state that for the first six months they were happy and thereafter as the accused was

assaulting his wife, she had come home. He had also stated that Panchayat was convened, in which, P.Ws.4 and 5 participated. In the cross

examination of P.W.2 also nothing much had been elicited to discredit her evidence about the life of the accused with his wife, not being happy at

all. In fact their evidence shows that on account of continued ill treatment, when their daughter came home, they refused to send her back to her

matrimonial abode and then due to intervention by mediators she was sent. The fact remains that within a month after she joining her husband, she

died. It may be open to the accused to challenge the evidence of P.Ws. 1 and 2 on the above aspect that they are interested witnesses. Mere

interestedness alone cannot be a guiding factor to accept or not to accept the evidence of a witness. But at the same rime caution must be in the

mind of the court, is the Law laid down by various courts. But in a case of this type namely, husband and wife not living happily and wife being

subjected to some harassment, the Court cannot accept evidence from any independent sources as a matter of rule. In other words only the family

members of either parties would be in a position to speak about that fact. But in the present case besides the evidence of P.Ws.1 and 2, we have

the evidence of P.Ws.4 and 5, who are mediators on the last occasion, after which the deceased joined her husband. Their evidence also in sum

and substance shows that there was a strained relationship between the accused and his wife. In fact their evidence shows that the accused

requested them to see that his wife being united with him. From the materials noted above, it is not possible for us to rule out that there must have

been a lingering motive in the mind of the accused. The Court is not concerned about the sufficiency or insufficiency of the motive to commit the

crime as said by the Supreme Court in the judgment referred to supra. Therefore we hold that the accused had a motive in his mind and as to how

the motive was working on him is not possible to visualize, except when it is shown to have manifested itself on the fateful night.

The prosecution relies upon only two circumstances to connect the accused with the crime, namely, they living together; Sokkayee being alone

during the night of the fateful day and found dead on that night-though according to the prosecution at 11.00 p.m. in the mid-night but according to

the accused at 5.00 a.m. in the following morning. The prosecution, in our considered opinion, cannot show, besides establishing the motive, any

other circumstance in this case, other than the one referred to earlier. Therefore we have to decide whether the above established circumstance do

constitute a chain, which unerringly points out to the guilt of the accused and the accused alone and not to his innocence. If this circumstance is

appreciated in the context of his surviving motive we ask a question to ourselves as to why such circumstance cannot point out to the guilt of the

accused and the accused alone. Our answer is in favour of the State. Only in that context, we relied upon the false explanation given by the

accused in his statement filed immediately after his questioning u/s 313, wherein he had stated that he left the house to irrigate his lands during night

and when he returned home at 5.00 a.m., he found his wife dead. If really he has any lands to irrigate, he could have produced those records to

state that he owns lands, which he failed. If really he was not in the house at the time when his wife died and that he went to the lands to irrigate, he

could have established that, as a fact. But however, he had not made any attempt even to bring any of those materials before court to decide to go

by his stand that he was out of the house during night time and came home only at 5.00 a.m. on the next morning. In this context we go through the

evidence of P.W.3, who states that when he went to the house of the accused at 11.00 p.m. in the night, the accused accompanied him. In

categorical terms, P.W.3 had stated in his cross examination that when he went to the house of the accused in his motor cycle, the accused was his

pillion rider. The evidence of P.W.3 definitely leads us to believe that the accused was travelling with P.W.3 in his motor-cycle to the house where

Sokkayee was found lying dead. Under these circumstances, we are of the considered opinion that the accused has a duty to explain under what

circumstances his wife died. As noted earlier, he only pleads that he was not in the house at the time when his wife died, which we are not

prepared to believe in the context of the evidence of P.W.3 that on P.W.3 being woken up on the midnight, P.W.3 went to the house of the

accused, with the accused travelling as a pillion rider in his motor cycle. Therefore it is clear that the prosecution has established by the above

referred to circumstance that it is the accused and the accused alone, who is responsible for the murder of his wife and he having failed to give any

explanation about the circumstance under which his wife has lost her life. Therefore his false plea is an assuring material to complete the chain of

circumstance relied upon by the prosecution.

It is contended by the learned counsel appearing for the accused that the evidence on record do show the presence of the police long prior to

11.00 a.m. on 27.5.1999 when Ex.P.1 had come to be registered. Though there is some evidence, giving an indulgence in favour of rustic villagers

namely, P.Ws.1 and 2, we are not inclined to go by their perception, at which point of time, the police personnel were stated to be there. If really

the case of the defence is accepted that police came to the scene of occurrence long before and deliberated on the cause of death, nothing would

have prevented them from implicating the accused as the accused in Ex.P.1 as well as the printed First Information Report. On the other hand, in

Ex.P.1, P.W.1 had not even mentioned that he had a suspicion against his son-in-law the accused and the complaint was registered only u/s 174 of

the Code of Criminal Procedure. Only after getting the final opinion from the Doctor on 2.8.1999 when the viscera report was made ready, the

section of offence was altered into one u/s 302 I.P.C. Therefore the argument advanced by the learned counsel appearing for the accused that it is

a fabricated First Information Report and that there as an earlier First Information Report, on which alone police personnel went to the scene of

occurrence at the early hours of 27.5.1999 do not impress us at all.

We now refer to the case laws relied upon by the learned counsel for the accused and the impact of those case laws to the present case on

hand. In 2005 S.C.C. (Cri.) 870 (Shingara Singh v. State of Haryana) relied upon by the learned counsel for the accused, the Supreme Court had

reiterated the principle as to when and under what circumstances the Appellate Court can interfere in a judgment of acquittal. We are fully aware

about those position in law and we have referred to one of the case laws brought to our notice by the learned Additional Public Prosecutor. The

learned counsel for the accused would contend that there must be direct evidence to the involvement of the accused in the act of killing his wife by

smothering and since it is absent there cannot be a conviction. For this purpose, he relied upon a decision of the Supreme Court reported in 2004

S.C.C. (Cri.) 1913 (State Of Madhya Pradesh v. Sanjay Rai), wherein it has been held as follows:

Apart from that, even if on the hypothetical basis it is held that doubt could (sic not) arise on the basis of strangulation, in the absence of any

evidence whatsoever to connect the respondent-accused with the act of strangulation, the conclusions of the trial court could not have been

maintained and the High Court which is entitled to re-appreciate the evidence could and has rightly discarded it.

In our respectful opinion, to the facts of this case, the case law brought to our notice, would not apply. In the case on hand, we have found that the

medical evidence establishes the cause of death as due to asphyxia by smothering; circumstantial evidence placed by the prosecution show that it is

only the accused, who had killed his wife and falsity of the plea of the accused lends an assurance to the case of the prosecution. Learned counsel

appearing for the accused would state that the prosecution cannot rely upon the evidence of P.W.3 when he said that the accused woke him up on

the night of 26.5.1999 and informed him as his wife had consumed poison, she needs attention, as amounting to a false plea taken by the accused.

For this purpose, he relies upon a judgment of the Supreme Court reported in 2005 S.C.C. (Cri.) 1225 (State of Andhra Pradesh v. Patnam

Anandam). We state that we have not taken that information stated to have been passed on by the accused to P.W.3, namely, the accused telling

him that his wife needs medical attention, as she had consumed poison, as amounting to a false explanation to decide the case of the prosecution

and therefore we are of the respectful opinion that the above referred to judgment is also not in useful to the accused.

Let us now see whether the reasons given by the learned Trial Judge in acquitting the accused of the offence of murder are reasonable calling

for no interference or could it be termed as perverse, reasons by the learned Trial Judge for acquitting the accused for the offence of murder are as

hereunder:

The presence of the police at 8.00 or 8.30 a.m. on 27.5.1999 in the scene of occurrence; Ex.P. 1 had come to be recorded only at 11.00 a.m. on

27.5.1999 and therefore Ex.P.1 cannot be the origin of the prosecution case; there should have been an earlier information to the police, on receipt

of which, the police would have arrived at the scene of occurrence; therefore Ex.P.1 is hit by Section 161 of the Code of Criminal Procedure;

P.W.12, being only a Tahsildar, has no jurisdiction to conduct inquest over the dead body and it is only the Revenue Divisional Officer, who can

conduct inquest; as to whether the inquest could have been done at all, at the time and in the manner alleged is doubtful; the medical evidence is not

supporting the prosecution case; the symptoms usually available in a case of death by smothering are not available as certified by P.W.10, the

Doctor, who did post mortem; whether the accused had used M.0.2, the Pillow at all to have suffocation, is open to a serious doubt; the accused

had stated at the end of his 313 questioning that he came home only at 5.00 a.m. to see his wife lying dead and if the accused had committed the

murder, he would not have been available when P.W.13 went to the scene to investigate.

In our considered opinion, the reasons which entered the mind of the learned Sessions Judge as referred to above are not reasons in the eye of

law. Absence of usual symptoms in a case of death like this, the Supreme Court had stated, cannot be a tilting factor in favour of the accused. We

have already held that the argument advanced on the presence of the police at the time of occurrence and therefore Ex.P.1 is a fabricated

document and that there must be an earlier information, is against all common sense and in any event against legal inferences that could be drawn

from established facts. Therefore we are constrained to hold from the evidence available on record it is not possible to have two divergent views

and in our opinion and careful analysis only one view is possible namely, the accused and the accused alone is guilty. The finding given by the Trial

Court in acquitting the accused of the offence u/s 302 I.P.C is wholly unreasonable and is not based on the evidence on record. Under these

circumstances we have no hesitation at all in holding that the Trial Judge had committed a patent error in Law in acquitting the accused of the

offence of murder, when there is abundant legal evidence by way of circumstantial evidence coupled with the false plea of the accused.

Consequently, we are constrained to interfere with the judgment under challenge and accordingly we interfere by setting aside the judgment under

challenge so far as it relates to acquitting the accused of the offence of murder and instead hold him guilty for the offence u/s 302 I.P.C.

Though we are not obliged to question the accused on sentence (see 1977 SC 1747 : 1977 L.W. (Crl.) 34 - Tarlok Singh v. State Of Punjab)

yet, we want to hear him on the question of sentence. Call on 19.12.2005 for questioning.

The accused by name Subramaniam is present before us. We explained to him that we have found him guilty for the offence u/s 302 I.P.C. and

questioned him as to what he wants to say on that finding. He said that he is innocent and that he had not committed any offence at all. When

questioned on the sentence, he pleaded for mercy. We have found him guilty for the offence u/s 302 I.P.C. for which only two punishments can be

given viz., either death or life imprisonment. On the facts noted by us, we do not find that this is one of the rarest of rarest cases to impose the

extreme sentence of death penalty. Therefore we are inclined to sentence him only to life imprisonment. Consequently, interfering with the judgment

under challenge so far as acquitting the accused for the offence u/s 302 I.P.C., we hold him guilty for the offence u/s 302 I.P.C. and sentence him

to undergo imprisonment for life. The accused shall be confined in Central Prison, Salem as desired by him.

In view of our disposal of the criminal appeal, we are not inclined to pass any separate order in Crl.R.C. No. 264 of 2001 and accordingly it

stands closed.