Ponusamy Vs. State of
 INSC 626 (10 April 2008)
S.B. SINHA & HARJIT SINGH BEDI
REPORTABLE CRIMINAL APPEAL NO. 429 OF 2006 S.B. SINHA, J.
1. This appeal is directed against the judgment and order dated 23rd June,
2005 passed by a Division Bench of the High Court of Judicature at Madras in
Criminal Appeal No. 937 of 1998 whereby and whereunder an appeal from a
judgment of conviction and sentence passed by the Ist Additional District
Judge-cum-Chief Judicial Magistrate, Erode dated 12th October, 1998 in S.C. No.
93 of 1998 convicting the appellant herein for commission of an offence under
Section 302 of the Indian Penal Code as also under Section 201 thereof and
sentencing him to undergo rigorous imprisonment for life and two years
respectively, was dismissed.
2. Deceased Selvi was the wife of the appellant. She was earlier married to
one Easwaran, PW-9. Allegedly Easwaran had married one Balamani and after
divorcing her, he married the deceased. He, however, continued to have
relations with Balamani. He purported to have divorced Balamani by a letter.
The deceased was living with her mother Ramathal, PW-1. Appellant thereafter
married the deceased. He had been informed, about the fact of the earlier
marriage of the deceased. He agreed to the proposal of marriage but wanted two
acres of land. A Deed of Gift in favour of the deceased was executed by her
father. Appellant wanted the same to be registered in his name. His request was
not acceded to. He left the house of PW-1 after three days of marriage. A year
thereafter, he intended to live with the deceased and approached Thangavel,
PW-2, therefor. As the deceased also agreed to the said proposal, they left the
house of PW-1 on 5th March, 1997.
She was not seen thereafter. Allegedly in the morning of 10th March, 1997, the appellant met PW-2 and informed him that the deceased had gone away
from his house on that date. A search for her was carried out. On the next
date, the appellant was seen at the Sevoor bus stop. Kannan Naicker, PW-10 was
also present there. He asked the appellant and questioned the deceased's
whereabouts, in response whereto he allegedly disclosed that he had murdered
her on 9th March, 1997. PW-10 allegedly became panicky.
He became sick. He then requested Arunachalam @ Mani, PW-11, to take him to
a doctor. When they returned from the doctor's clinic, they found the appellant
in the office of the Village Administrative Officer, PW-18. He purported to
have made a confession again before PW-18 that he had murdered Selvi before
PW-18. He also had a packer of paper in his hand.
3. PW-10 then requested PW-11 to inform PW-2 about the matter. On receiving
the said information an attempt was made to lodge a First Information Report at
Sathyamangalam police station. The First Information Report was refused to be
registered thereat in the absence of any dead body or any other evidence with
regard to the murder. A search was conducted for the dead body. On the bank of
L.B.P. canal dead body was found on 14th March, 1997 which fell within the jurisdiction
of Kadathur police station. A complaint was made before Ramasamy, Inspector of
Police, PW-13, at 10.30 a.m. on the same day, whereupon a First Information
Report was registered under Section 302 and Section 201 of the Indian Penal
Code. Investigation was taken up by PW-22, the Deputy Superintendent of Police
4. PW-1 identified the dead body on the basis of a talisman, which was found
on her hand, as also on identification of her saree. A key was found tagged in
the saree. The key was removed. On a query enquiry made by PW-22, in regard to
the lock for which the key was used, it was stated that the lock was fitted to
a trunk. The trunk was brought. The key was fitted in the lock of the trunk. It
was opened with the said key.
5. An inquest was conducted. The dead body was also subjected to postmortem
examination. In the said report it was stated :- "Highly decomposed with
maggots all over the body.
Teeth 1/3 nose, eye, mouth absent. Thorax : No fracture ribs. Heart :
Partially decomposed. Lungs :
Decomposed. Hyoid Bone : Intact. Stomach, Liver, Spleen and Kideny :
Partially liquefied with greenish discolouration. Intestine, Bladder and Uterus
: Partially decomposed. Head : No fracture skull. Brain :
6. PW-18, the Village Administrative Officer, in the meantime took the
appellant to the Tahsildar, PW-19. Not only he confessed that he had murdered
his wife and thrrown the dead-body in the canal but also produced a 'thali
chain' , M.O. 1 and ear rings, M.O.2 belonging to the deceased.
Confessional statement of the appellant was reduced into writing. He was
thereafter produced before the Judicial Magistrate.
7. Admittedly, there was no eye witness to the occurrence.
8. The entire prosecution case is
based on circumstantial evidence. The Learned Sessions Judge in his judgment
found the following circumstances to arrive at his conclusion with regard to the
guilt of the appellant. :-
Deceased was last seen in his company
on 5th March, 1997.
She was not seen in anybody else's
company between 5th March, 1997 and 10th March, 1997.
Appellant made an extra judicial confession not only before PW-2 but also
before PWs. 10 & 18.
On the basis of his confession that the dead body had been thrown in L.B.P. canal a search for the dead body was made and recovered.
Dead body was that of a female. It was identified to be that of the
deceased with reference to the manglasutra and some other jewellery which were
found on her person. Photograph of the deceased was superimposed on the
photograph of the dead-body and it was found to be that of her.
Appellant produced the belongings of
the deceased before the Village Administrative Officer, PW-18, which admittedly
belonged to her.
9. The appeal preferred thereagainst by the appellant has been dismissed by
the High Court by reason of the impugned judgment.
10. Mr. A.T.M. Rangaramanajam, learned
Senior Counsel appearing on behalf of the appellant, in support of the appeal
would submit :-
It was improbable that the appellant
had confessed his guilt before PW-2.
The purported extra judicial
confession by the appellant before PW-10 should not be relied upon, having
regard to the latter's conduct, inasmuch, he did not report thereabout to the
police on the pretext of his becoming sick in respect of which no material was
brought on record.
Post-mortem report clearly established that the body recovered was in a
highly decomposed stage which was, thus, not in a position to be identified,
and, in that view of the matter, the corpus delicti having not been proved, the
impugned judgment cannot be sustained.
No fracture having been found on hyoid
bone, it is evident that the deceased did not die of strangulation which was the
positive case of the prosecution.
No explanation having been furnished
for the delay in lodging the First Information Report, the entire prosecution
case is suspicious.
Conduct of the prosecution witnesses
and in particular that of PW-1, PW-2 and PW-10 is such, that would lead to the
conclusion that they are not trustworthy witnesses.
Extra judicial confession, in any
event, being a weak evidence, it was obligatory on the part of the prosecution
to lead evidence corroborating thereto.
Extra judicial confession in any event
being contrary to or inconsistent with the medical report, it would not be safe
to rely thereupon.
Mr. R. Shunmugasundaram, learned Senior Counsel appearing on behalf of
the State, on the other hand urged :- 1) The dead body having been identified
with reference to manglasutra, key and saree, the courts below rightly held
that the dead-body was that of the deceased 'Selvi'.
2) The jewellery items which were handed over by the appellant himself in a
packet, were identified by PW-1 when she was afforded an opportunity to do so.
3) It is not correct to contend that PW-10, despite extra judicial
confession made before him, did not take any step in that behalf as he had
immediately sent PW-11, Mani, to inform PW-2 thereabout. It is thereafter only,
that they went to the police station.
4) Sufficient explanation had been offered by PW-1, in regard to the delay
in lodging of the First Information Report, having regard to the fact that
Sathyamangalam police station had refused to record the First Information
Report in the absence of the dead body and/or any other record. A First
Information Report was lodged only after the dead body was seen and identified
with reference to the talisman, M.O.4; key, M.O. 5 and the silver ring which
was found on her toe.
5) Thiru Devarajan, who examined himself as PW-22, and was working as Deputy
Superintendent of Police, was a witness to the identification of the dead-body
to be that of Selvi from the ninji, "dayath" tied on the hand and
from the key tied to the end of the saree. Only at his instance, the trunk was
brought and the lock opened with the key.
6) Requisition, Ext.P.3, was made by the Superintendent of the police for
chemical test and the Chemical Text Report, Ext.P.5 categorically established
the identity of the deceased.
7) Absence of fracture on the hyoid bone itself would not lead to the
conclusion that the deceased did not die of strangulation as medical
jurisprudence suggests that only in a fraction of such cases, a fracture of
hyoid bone is found.
11. The relationship of the appellant with that of the deceased is not in
dispute. That they were married and immediately thereafter started living in
the house of P-1 is also not denied or disputed. It further stands established
that PW-2 is the husband of Rukmani, another daughter of PW-1. It has also not
been disputed that the deceased was earlier married to Easwaran, PW-9.
The prosecution has also brought on record a Deed of Gift dated 25th
January, 1996 executed by the husband of PW-1 in favour of the deceased.
There is also no serious dispute that the appellant did not maintain any
relationship with the deceased for about a year. They were last seen together
on 5th March, 1997, when they travelled together from the house of PW-1.
12. Voluntary statement made by the appellant to PW-2 on 10th March, 1997
that she had been missing was found by both the courts below to be untrue.
13. Indisputably, some delay took place in lodging the First Information
Report. Till 11th March, 1997 PW-1 or for that matter PW-2, was not sure about
the death of the deceased. Only when an extra judicial confession was made by
the appellant, an attempt was made to lodge a First Information Report.
14. The contention of the learned counsel that the statement to the said
effect, purported to have been made, by PW-1 should not be relied upon as no
officer from the police station had been examined to establish the said fact,
cannot be accepted for more than one reason. PW1 is a rustic villager.
She is an illiterate lady. According to her, she had been turned away from
the police station on the premise that no dead body was recovered or there
being no other evidence relating to her death. No exception to such a statement
can be taken. The courts cannot be oblivious of such conduct on the part of the
police officers. Apathy on the part of the police officers to accept complaints
promptly is well known phenomena.
They were searching for the deceased earlier but without success.
Only on the disclosure statement made by the appellant before PW-10 and the
police officer at Sathyamangalam police station having refused to record the
First Information Report, they started searching for the body on the bank of
the canal. The Investigating Officer, Village Administrative officer as also
other prosecution witnesses , clearly proved the discovery of a dead body.
Identification of the dead body on the basis of the manglasutra, saree as also
the sliver ring on the toe of the deceased is not in dispute.
Significantly, a key was also recovered. PW-22, a responsible officer, with
a view to satisfy himself as regards the identity of the dead body, with
reference to the key tied at the end of the saree, asked PW-2 to bring the
trunk and found it to be of the lock put on the said trunk.
15. Attempts on the part of the prosecution to establish identity of the
dead body to be that of the deceased did not stop there. It was sent for
opinion of a Chemical Examiner. It was opined :- " During superimposition,
the following observations were made :- a) The anthroposcopic land mark on the
fact in item 1 and those on the skull item 2 fitted fairly well.
b) The outline of the face in item 1 and the outline of skull item 2 were
found to be in fair congruence.
OPINION The skull item 2 could very well have belonged to the female
individual seen in photograph item 1."
The said report has been proved. Its' veracity is not disputed before us. We
do not find any cogent reason to doubt its correctness thereof.
16. Appellant is said to have thrown the dead-body in the canal. The fact
that there was sufficient water in the canal has also been established. In a
situation of this nature, a presumption about the knowledge of the appellant in
regard to location of the dead body of 'Selvi' can be drawn. His confession led
to a discovery of fact which had a nexus with commission of a crime.
17. This Court in State of Mahasrashtra vs. Suresh : (2000) 1 SCC 471 opined
:- "26. We too countenance three possibilities when an accused points out
the place where a dead body or an incriminating material was concealed without
stating that it was conceded by himself. One is that he himself would have
concealed it. Second is that he would have seen somebody else concealing it.
And the third is that he would have been told by another person that it was
concealed there. But if the accused declines to tell the criminal court that
his knowledge about the concealment was on account of one of the last two
possibilities the criminal court can presume that it was concealed by the
accused himself. This is because accused is the only person who can offer the
explanation as to how else he came to know of such concealment and if he
chooses to refrain from telling the court as to how else he came to know of it,
the presumption is a well justified course to be adopted by the criminal court
that the concealment was made by himself. Such an interpretation is not
inconsistent with the principle embodied in Section 27 of the Evidence Act.
18. We have to consider the factual background of the present case in the
light of the relationship between the parties. If his wife was found missing,
ordinarily, the husband would search for he. If she has died in an unnatural
situation when she was in his company, he is expected to offer an explanation
therefor. Lack of such explanation on the part of the appellant itself would be
a circumstantial evidence against him.
19. In Trimukh Maroti Kirkan vs. State of Maharashtra : (2006) 10 SCC 681,
it was observed :- "22. Where an accused is alleged to have committed the
murder of his wife and the prosecution succeeds in leading evidence to show
that shortly before the commission of crime they were seen together or the
offence takes placed in the dwelling home where the husband also normally
resided, 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 circumstance which indicates that he is
responsible for commission of the crime.
[See also Raj Kumar Prasad Tamarkar vs. State of Bihar and another : 2007
(1) SCALE 19].
20. It is true that the autopsy surgeon, PW-17, did not find any fracture on
the hyoid bone. Existence of such a fracture lead to a conclusive proof of
strangulation but absence thereof does not prove contra.
In Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth
Edition, pages 307-308, it is stated :- " The hyoid bone is 'U' shaped and
composed of five parts : the body, two greater and two lesser horns. It is
relatively protected, lying at the root of the tongue where the body is
difficult to feel. The greater horn, which can be felt more easily, lies behind
the front part of the strip-muscles (sternomastoid), 3 cm below the angle of
the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres,
a pair for the body and one for each horn. The greater horns are, in early
life, connected to the body by cartilage but after middle life they are usually
united by bone. The lesser horns are situated close to the junction of the
greater horns in the body. They are connected to the body of the bone by
fibrous tissue and occasionally to the greater horns by synovial joints which
usually persist throughout life but occasionally become ankylosed.
Our own findings suggest that although the hardening of the bone is related
to age there can be considerable variation and elderly people sometimes show
only slight ossification.
From the above consideration of the anatomy it will be appreciated that
while injuries to the body are unlikely, a grip high up on the neck may readily
produce fractures of the greater horns. Sometimes it would appear that the
local pressure from the thumb causes a fracture on one side only.
While the amount of force in manual strangulation would often appear to be
greatly in excess of that required to cause death, the application of such
force, as evidenced by extensive external and soft tissue injuries, make it
unusual to find fractures of the hyoid bone in a person under the age of 40
As stated, even in older people in which ossification is incomplete, considerable
violence may leave this bone intact. This view is confirmed by Green.
He gives interesting figures : in 34 cases of manual strangulation the hyoid
was fractured in 12 (35%) as compared with the classic paper of Gonzales who
reported four fractures in 24 cases. The figures in strangulation by ligature
show that the percentage of hyoid fractures was 13. Our own figures are similar
to those of Green."
22. In 'Journal of Forensic Sciences' Volume 41 under the Title Fracture of
the Hyoid Bone in Strangulation : Comparison of Fractured and Unfractured
Hyoids from Victims of Strangulation, it is stated :- " The hyoid is the
U-shaped bone of the neck that is fractured in one-third of all homicides by
On this basis, postmortem detection of hyoid fracture is relevant to the
diagnosis of strangulation. However, since many cases lack a hyoid fracture,
the absence of this finding does not exclude strangulation as a cause of death.
The reasons why some hyoids fracture and others do not may relate to the nature
and magnitude of force applied to the neck, age of the victim, nature of the
instrument (ligature or hands) used to strangle, and intrinsic anatomic
features of the hyoid bone. We compared the case profiles and xeroradiographic
appearance of the hyoids of 20 victims of homicidal strangulation with and
without hyoid fracture (n = 10, each). The fractured hyoids occurred in older
victims of strangulation (39 1 14 years) when compared to the victims with
unfractured hyoids (30 1 10 years). The age- dependency of hyoid fracture
correlated with the degree of ossification or fusion of the hyoid
synchondroses. The hyoid was fused in older victims of strangulation (41 1 12
years) whereas the unfused hyoids were found in the younger victims (28 1 10
years). In addition, the hyoid bone was ossified or fused in 70% of all
fractured hyoids, but, only 30% of the unfractured hyoids were fused. The shape
of the hyoid bone was also found to differentiate fractured and unfractured
hyoids. Fractured byoids were longer in the anterior-posterior plane and were
more steeply sloping when compared with unfractured hyoids.
These data indicate that hyoids of strangulation victims, with and without
fracture, are distinguished by various indices of shape and rigidity. On this
basis, it may be possible to explain why some victims of strangulation do not
have fractured hyoid bones."
23. Mr. Rangaramanajam, however, relied upon Modi's 'Medical Jurisprudence
and Toxicology', Twenty-Third Edition at page 584 wherein a difference between
hanging and strangulation has been stated. Our attention in this connection has
been drawn to point No.12 which reads as under :- Hanging Strangulation
Fracture of the larynx and trachea Very rare and that too in judicial hanging.
Fracture of the larynx and trachea Often found also hyoid bone.
24. A bare perusal of the opinion of the learned Author by itself does not
lead to the conclusion that fracture of hyoid bone, is a must in all the cases.
25. We must also take into consideration the fact that the dead-body was
decomposed with maggots all over it. Other marks of strangulation which could
have been found were not to be found in this case. The dead body was found
after a few days. We are, therefore, of the opinion that medical evidence does
not negate the prosecution case.
26. There cannot be any doubt that extra judicial confession is evidence of
weaks nature as has been held in Kuldip Singh and another vs. State of Punjab :
(2002) 6 SCC 757 However, it must also be noticed that therein, not only the
confession made by the appellant was found to be unbelievable, even the
recovery of the dead body, pursuant to the disclosure statement made, was also
found to be so. There was no other evidence on record on the basis of which the
conviction of the appellant could be sustained.
In this case, however, not only an extra judicial confession was made by the
appellant before PW-10, the same was also made before PW-11. The jewellery
which had been put on by the deceased was produced by the appellant. Only upon
the disclosure made by the appellant that the dead body had been thrown in the
canal, a search was made and it was found.
The dead body was also identified to be that of the deceased.
27. In Vinayak Shivajirao Pol vs. State of Mahasrashtra : (1998) 2 SCC 233
this Court opined :- "10. There is no ambiguity in the above statement. It
shows that the appellant killed his wife. Both the Courts have found that the
statement was made voluntarily by the appellant. The sequence of events shows
that at the time when the appellant made a confession, neither he nor the
military authorities had any knowledge of the recovery of the headless trunk of
the appellant's wife.
The military authorities were in no way biased or inimical to the appellant.
Nothing is brought out in the evidence in respect of the military officers
which may indicate that they had a motive for attributing an untruthful
statement to the appellant. The statement has been proved by one of the
officers to whom it was made.
The said officer has been examined as PW 32. A perusal of the evidence shows
that the vague plea raised by the appellant that the statement was obtained
from him on inducement and promise is not true. In such circumstances it is
open to the Court to rest its conclusion on the basis of such statement and no
corroboration is necessary."
28. We have been taken through the evidence of PW-10 and PW-18. We have no
reason to differ with the findings of the learned trial Judge as also the High
Court that the extra judicial confession was voluntary or truthful.
We, therefore, are of the opinion that no case has been made out for
interference with the impugned judgment. The appeal fails and is dismissed