Subramaniam Vs. State
of Tamil Nadu & ANR.  INSC 1059 (13 May 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 774 OF 2006
SUBRAMANIAM ... APPELLANT Versus
S.B. SINHA, J.
got married with Baby alias Sokkayyal ("the deceased") in the year
1996 at village Thallakuttaipudur. After the marriage, they were living at
Village Ennamangalam. The deceased was found dead in her matrimonial home on
26.5.1999 at about 11:00 p.m. On the request of the appellant, Chinnaraj (P.W.
3) went to the village Thallakuttaipudur, which is said to be situated at a
distance of 18 miles from village Ennamangalam, to inform the parents of the
deceased. They arrived at about 9:00 a.m. in the next morning.
2 The First
Information Report (for short, "FIR") was lodged in regard to the
aforementioned incident at about 11:00 a.m. in Vellithiruppur police station.
The FIR is based on a written report wherein it was alleged that the deceased
was subjected to cruelty and/or harassment at the hands of her husband and
in-laws as sufficient dowry had not been given in her marriage.
It was furthermore
alleged that as the demand of dowry could not be met, a blank promissory note
was executed by him on affixation of a revenue stamp. On the basis of the said
information, FIR was lodged against the accused for commission of offences
punishable under Sections 498A and 302 of the Indian Penal Code (for short,
"the IPC") as also under Section 4 of the Dowry Prohibition Act.
the learned Sessions Judge, fourteen witnesses were examined by the prosecution
in support of its case. P.W.1 - Muthusamy and P.W. 2 - Easwari are the parents
of the deceased; P.W.3 - Chinnaraj had been residing close to the house of the
appellant. He knew the appellant as well as the deceased; P.W.4 - Sakthivel and
P.W. 5 - Senniappan were examined by the prosecution to prove that when the
deceased had been staying with her parents about three months prior to the date
of occurrence, a compromise was allegedly entered into in the house of P.W. 1
for the purpose of bringing her back to her matrimonial home. P.W. 6 - Thiru
Karunakaran is the Village Administrative Officer who witnessed preparation of
the Observation Mahazar and the recovery of the material objects M.Os.1 and 2.
P.W. 7 - Charles
Mohan is a photographer, who had taken photographs of the scene of occurrence.
P.W.8 - Anbazhagan is Head Constable in Vellithiruppur Police Station. P.W.9 -
Ganesan is Grade II Constable in Vellithiruppur Police Station. P.W. 10 - Dr.
Ranjini who did post-mortem on the dead body; P.W. 11 - Sivakumar is a
Sub-Inspector of Police; P.W.12 - Srinivasan conducted inquest on the dead
body; P.W. 13 - Manoharan is Superintendent of Police in the Madurai Civil
Supply CID Section. P.W. 11 and P.W 13 are the Investigating Officer. P.W.14 -
Muthusamy is Deputy Superintendent of Police who later succeeded P.W.13.
learned Sessions Judge by a judgment and order dated 14.11.2000 recorded a
judgment of acquittal in favour of appellant. The State preferred an appeal
thereagainst. By reason of the impugned judgment dated 15.12.2005, the High
Court while affirming the view of the trial court with regard to the order of
acquittal of appellant of the charges under Section 498A of the IPC and Section
4 of the Dowry Prohibition Act, however, recorded a judgment of conviction and
sentence against him under Section 302 of the IPC opining that its findings
Dhruv Mehta, learned counsel appearing on behalf of the appellant for assailing
the judgment of the High Court would contend:
i. The cause of death
of the deceased cannot be said to have been caused by smothering.
circumstantial evidence whereupon reliance has been placed by the High Court
cannot be said to have formed a complete link in the chain to arrive at the
guilt of the appellant.
iii. The police
having already arrived at the Village Ennamangalam early in the morning had
been admitted by P.W. 2 and P.W., no reliance can be placed on the FIR which
was lodged by P.W.1 at 11:00 a.m. in the police station.
Kanagaraj, learned Senior Counsel appearing on behalf of the respondent, on the
other hand, supported the judgment of the High Court urging that the fact that
the deceased was a young woman and pregnant of seven months and suffered an
unnatural death being not in dispute, the circumstances found favour with the
High Court, namely, (1) they had been living together and last seen together,
(2) it was for the appellant to give a 5 reasonable explanation as to how she
died, and (3) the plea of alibi taken by appellant having not been proved, no
interference with the impugned judgment is warranted.
of death as stated in the post-mortem report is as under:
found at the Post-Mortem:
female lies on the back, arms close to sides, lower limbs extended hair black,
skin pals, eyes closed, lips swollen, forthy fluid discharge of blood from
mouth and nose.
EXTERNAL INJURIES -
NIL INTERNAL 1. ............................
12. Kidneys both 160
gms. Normal .........
16. Head - Normal
18. Brain - Normal,
Viscera preserved for
deceased would appear to have died of 28 to 36 hrs. prior to autopsy. Final
opinion pending on Chemical Analysis.
6 Forensic Report:
RT. 2756/99 to H. 928/99 DT.
30.06.99 Viscera: 1.
Stomach and its contents
2. Intestine and its
6. Preservative The
above six articles were examined but poison was not detected in any of them.
Opinion as to cause
(a) Reserved pending
report of Viscera (b) The deceased would appear to have died of 28 to 36 hrs.
his prior to autopsy.
FINAL OPINION:- The
death is due to Asphyxia. May be due to smothering."
report was proved by Dr. Ranjini (P.W. 10). In her evidence apart from proving
the post-mortem report, she stated:
"While a pillow
like M.O. 2 were to be pressed on the face of a sleeping person there will be
opportunity for the swelling lips and difficult in breathing which would result
in the emproyo being affect. Further the Lungs will also get affected and blood
might ooze out through the mouth and nose."
7 However, she in
her cross examination admitted that if death was caused by asphyxia the eyes
would be open and tongue would get protruded and it was likely that the right
side of the heart would be full of blood and the left side of the heart would
be empty. It was furthermore accepted that at the time of death on account of
asphyxia, tardien sport should be found in the eyes and further hypacksia
should be found, i.e., the oxygen in the blood pertaining to the atoms would be
very much less. The face and head would also be found distended. It was
furthermore stated that:
should be mucous in the mouth and throat. Further generally at the time of
asphyxia there should be alveonian in the lungs and also idima polute should be
found. Further there should be camerine with kolappan with intersenian
espeomia. But the aforesaid were not found in the dead body of the deceased in
the absence of the aforesaid symptoms there was no opportunity for the deceased
the learned counsel had strongly relied upon Modi's Medical Jurisprudence and
Toxicology, 23rd Edition (for short, "Modi") to support their
respective cases as to whether in view of absence of some symptoms as accepted
by the autopsy surgeon, death could be caused by asphyxia. We may for the
aforementioned purpose notice some passages from Modi.
learned author defines application of the term `suffocation' to that form of
death that results from the exclusion of air from the lungs, by means other than
that of the compression of the neck. One of the types of `suffocation' is
smothering or closure of the mouth and the nostrils. With regard to smothering
or closure of the mouth and nostrils, it was stated:
often accidentally smothered by being overlaid by their mothers when they are
This is more common
among the lower classes of women in England. In India, such cases are rare, as
infants are generally not allowed to sleep in the same bed with their mothers,
but are placed in separate cradles. However, they are sometimes smothered by
inexperienced mothers who press them too closely to the breast when suckling. A
common method of killing infants, children and weak adults is to close the
mouth and the nostrils by means of the hand, bedclothes, soft pillows or mud.
Cases have been
recorded of adults being accidentally smothered by plaster of paris at the time
of taking a cast or mould, or by falling face downwards into vomited matter,
flour, cement, ashes, sand or mud, especially when drunk or during an epileptic
suffocation has been reported from various countries. Deaths have occurred in
course of autoerotic misadventures by use of plastic bag placed over the head.
Some addicts use plastic bags in a similar manner to sniff or inhale narcotic
vapours or anaesthetics. Chemical analysis is essential in all the cases of
plastic bag asphyxia occurring in teenagers; for otherwise the proper diagnosis
of poisoning by inhalation of narcotic vapours may be missed. A thorough search
of the scene for the solvents (acetone, benzene, toluene, napththa, carbon
tetrachloride) should also be made and the relatives questioned."
It was furthermore
stated that choking or obstruction of the air- passages from within is mostly
accidental. With regard to the post-mortem appearance, it is stated:
appearances are external and internal (i) External Appearance The external
appearance may be due to the cause producing suffocation, or to asphyxia.
(a) Appearance due to
the Cause Producing Suffocation: In homicidal smothering, affected by the
forcible application of the hand over the mouth and the nostrils, bruises and
abrasions are often found on the lips and on the angles of the mouth, and
alongside the nostrils. The inner mucosal surface of the lips may be found
lacerated from pressure on the teeth. The nose may be flattened, and its septum
may be fractured from pressure of the hand, but these signs are, in Modi's
experience, very rare. There may be bruises and abrasions on the cheeks and the
molar regions, or on the lower jaw, if there has been a struggle. Rarely,
fracture or dislocation of the cervical vertebrae may occur if the neck has
been forcibly wrenched in an attempt at smothering with the hand. No local
signs of violence will be found, if a soft cloth or pillow has been used to
block the mouth and nostrils.
10 In compression of
the chest, external signs of injury may not be present, but the ribs are
usually fractured on both the sides. In homicidal compression of the chest
brought about by the hands or knees of a murderer or by some other hard
material, bruises and abrasions, symmetrical on both sides, are usually found
on the skin together with extravasation of the blood in the subcutaneous
tissues. Rarely, along with the ribs the sternum is also fractured. It should,
however, be remembered that the traumatic asphyxia produces variable findings.
In a fair person, purple suffusion of skin above the point of compression is
apparent in severe fixation of the chest by mechanical compression. There may
not be any external or internal signs where the pressure is slight or evenly
(b) Appearance due to
asphyxia: The face may be pale or suffused. The eyes are open, the eyeballs are
prominent, and the conjunctivae are congested and sometimes there are petechial
hemorrhages. The lips are livid, and the tongue sometimes protruded. Bloddy
froth comes out of the mouth and the nostrils. The skin shows punctiform
ecchymoses with lividity of the limbs.
Rupture of the
tympanum may occur from a violent effort at respiration.
Appearance Rags, mud or any other foreign matter may be found in the mouth,
throat, larynx or trachea, when suffocation has been caused by the impaction of
a foreign substance in the air-passages. It may also be found in the pharynx or
the oesophagus. The mucous membrane of the trachea is usually bright red, covered
with bloody froth and congested. The lungs are congested and emphysematous.
They may be lacerated or contused even without any fracture of the rib, if
death has been caused by pressure on the chest. Punctiform subpleural
ecchymoses (Tardieu spots) are usually present at the root, base, and the lower
margins of the lungs, but they are not characteristic of death by suffocation,
as they may also be present in asphyxia death from other causes. They are also
found on the thymus, pericardium, and along the roots of the coronary vessels.
The lungs may be found quite normal, if death has occurred rapidly.
The right side of the
heart is often full of dark fluid blood, and the left empty. The blood does not
readily coagulate; hence, wound caused after death may bleed. The brain is
generally congesting, and so are the abdominal organs, especially the liver,
spleen and kidneys"
In his opinion, to
come to a definite conclusion it is very essential to look for evidences of
violence in the shape of external marks surrounding the mouth and nostrils or
on inside the mucosal surface, or on the chest.
According to the
learned author, circumstantial evidence should always be taken into
consideration to establish the proof of death from suffocation. In regard to the
medico-legal question as to whether the suffocation was suicidal, homicidal or
accidental, the learned author stated:
suffocation by pressure on the chest is sometimes resorted to in India, but in
the case of adults, it is often combined with smothering or throttling, and it
is usually an act of more than one person.....
12 A form of
homicidal suffocation practiced in Northern India is known as `Bansdola',
although it is not so common now as it used to be formerly.
In this form, the
victim's chest is squeezed so forcibly between two strong wooden planks or
bamboos, one being placed across the upper part of the chest and the other
across the back of the shoulders, that the respiratory act is interfered with,
the muscles are lacerated and the ribs are fractured. If the force applied is
very severe, the lungs may be crushed and lacerated.
Burying alive used to
be resorted to in India as a form of punishment and lepers used to be sometimes
In the case of
infants dying under suspicious circumstances and afterwards exhumed, a question
may arise as to whether they had been buried alive.
The presence of fine
dust in the oesophagus and stomach is a convincing proof of the infant having
been buried alive. In a burial after death, fine dust may be found in the upper
air-passages, but not in the oesophagus or the stomach.
suffocation is frequent and is produced as described above and by being buried
under the sand or the earth while digging deep pits;
here the respiratory
tract is packed with sand or earth."
wish the expert would have been forthright in her view in regard to the cause
of death. A different conclusion was required to be arrived at keeping in view
the fact that a large number of symptoms were absent which 13 ordinarily point
out to the cause of death of asphyxia by smothering. Most of the symptoms
noticed by Modi should have remained present.
was frothy fluid discharge of blood from mouth and nose.
However, no frothy
fluid blood was found on the pillow. It may not be imperative but that could
have been a lead to a fairly definite opinion. It is in the aforementioned
situation, the learned Sessions Judge opined that death might not have been
caused by asphyxia, stating:
"In the present
case there is reasonable doubt in regard to the cause of death of the deceased
and it is not safe to rely upon the evidence of P.W. 8 solely for the purpose
of coming to the conclusion that the deceased's death is proved by the
prosecution to be homicidal. While viewing on that basis, P.W. 10 the Medical
Officer in her evidence had mentioned as detailed below:
Generally during the
time of asphyxia the eyes will be open and the tongue will be protruding
outside. Further the right side of the heart might be full of blood and the
left side being empty. Further at the time of asphyxia, the kidneys also should
be found distended and likewise the brain. Generally on account of asphyxia and
death is being caused Tardien sport should be in the eyes. Further at the time
of asphyxia there should be hybakia should be found.
(Hybakia means the
oxygen particles will be lesser in number in the blood). Further the face and
head will be found distended Synochiam with numerus petichal should be found.
Further there should be mucous in the mouth and throat. Further 14 Generally
during the time of asphyxia, there should be alviovis and idimafluid in the
Further there should
be camaris with collappus with intersavin enpiceomia. But the aforesaid signs
were not found in the dead body and therefore there was no opportunity for the
deceased to die on account of asphyxia.
learned judge noticed that P.W.10 was specific in her statement that paleness
in the brain could not have been noticed as it had liquefied by that time. It
was also found that P.W. 10 had deviated from her earlier opinion and stated
that it was not correct to say that no opinion of cerebral anoxia could be
given or arrived at in the case of liquefaction of the brain.
No saliva, blood and
tissue cells were found in the pillow; no scratches, distinct nail marks, or
laceration of the soft parts of the victim's face was noticed. It was not
brought to notice that pillow was a soft one or not. No bruising or laceration
was found in the lips, gums and tongue. The conduct of the accused that he had
all along been present and the opinion of the Doctor did not satisfy the tests
laid down in the authoritative book of Modi, it was held:
evidence of Medical Officer P.W. 10 having mentioned that the reason for the
death of the wife of the accused was on account of asphyxia but the same is
discrepant with the Medical Book.
Further in the report
Ex. P.6 no such symptom had been mentioned. Hence just because the accused and
his wife happened to be at the same place and 15 on that ground it cannot be
said that the accused had committed the aforesaid criminal offence as mentioned
on behalf of the prosecution."
High Court, on the other hand, while noticing only a part of the said tests
proceeded on the premise that those symptoms spoken to by her in her evidence
were not noted by her in the post-mortem report. Apart from the fact that the
quotation from Modi does not take into consideration all the symptoms noted
therein, a wrong test was applied that all the features in a given case would
not be available where the body is burnt after killing, which is not the case
herein. Despite noticing that some of the usual symptoms that would be
available in the case of death due to asphyxia by smothering were necessary
still a purported formal opinion was arrived at that the prosecution had
definitely established the cause of death. A similar question came up for
consideration in Mohd. Zahid vs. State of T.N. [1999 SCC (Crl.) 1066], wherein
the Doctor differed with a well known tests of medical jurisprudence. The
suggestion of the defence with reference thereto cannot be lightly brushed
aside particularly when post-mortem was conducted after a few days. P.W. 10 did
not refer to any other authoritative text to support her opinion. This Court in
the fact of that case opined:
reading of this part of PW-8's evidence shows that in one part PW-8 admits
that 16 the one and only method by which a medical examiner can conclude that
the cause of death was due to cerebral anoxia is by noticing the pale
appearance of the brain. She also specifically admits that there will not be
any other change in the brain in the case of cerebral anoxia and since the
brain had become liquefied, it cannot be stated if the brain had become pale or
not. She is also specific in her statement that there was no other sign by
which she could say that was cerebral anoxia. Stopping for a while at this
stage and examining PW-8's evidence, one finds that at the time of the post
mortem examination, Jabeena's brain had liquefied and there was no way by which
PW-8 could have noticed the paleness in the brain.
However, in the
latter part of her evidence, she deviates from her earlier opinion and states
that it is not correct to say that no opinion of cerebral anoxia could be given
or arrived at in the case of liquefaction of the brain. These two statements
are diametrically opposed to each other and we find it rather difficult to
accept this part of her evidence which is so self-contradictory. In our view,
the opinion of PW-8 that the cause of death as recorded by her is due to the
cumulative effect of asphyxia and cerebral anoxia, is rather difficult to
24. We are aware of
the fact that sufficient weightage should be given to the evidence of the
doctor who has conducted the post mortem, as compared to the statements found
in the text books, but giving weightage does not ipso facto mean that each and
every statement made by a medical witness should be accepted on its face value
even when it is self-contradictory. This is one such case where we find that
there is a reasonable doubt in regard to the cause of death of Jabeena and we
find it not safe to rely upon the evidence of PW-8, solely, for the purpose of
17 coming to the conclusion that Jabeena's death is proved by the prosecution
to be homicidal."
State of Himachal Pradesh vs. Jeet Singh [(1999) 4 SCC 370], this Court held:
"19. It appears
to us that the High Court has totally overlooked the features of the victim
which are consistent with the consequence of her having been subjected to
smothering. The injuries found on both the legs of the dead body are proof
positive that it was a homicidal smothering. We can place reliance on the
opinions of both sets of doctors that even without seeing the chemical
examiner's report, they could say that death of the deceased might be due to
smothering, and after seeing the chemical examiner's report, a doctor could say
that poison would also have worked fatally in the victim."
far as the circumstance that they had been living together is concerned,
indisputably, the entirety of the situation should be taken into consideration.
Ordinarily when the husband and wife remained within the four walls of a house
and a death by homicide takes place it will be for the husband to explain the
circumstances in which she might have died.
However, we cannot
lose sight of the fact that although the same may be considered to be a strong
circumstance but that by alone in absence of any evidence of violence on the
deceased cannot be held to be conclusive. It may be difficult to arrive at a
conclusion that the husband and husband alone was responsible therefor.
Kanagaraj has placed strong reliance upon the decision of this Court in Trimukh
Maroti Kirkan vs. State of Maharashtra [(2006) 10 SCC 681] wherein it was held:
question of burden of proof where some facts are within the personal knowledge
of the accused was examined in State of West Bengal v.
Mir Mohammad Omar and
Ors.[(2000) 8 SCC 382]. In this case the assailants forcibly dragged the
deceased, Mahesh from the house where he was taking shelter on account of the
fear of the accused and took him away at about 2.30 in the night. Next day in
the morning his mangled body was found lying in the hospital. The trial Court
convicted the accused under Section 364 read with Section 34 IPC and sentenced
them to 10 years' RI. The accused preferred an appeal against their conviction
before the High Court and the State also filed an appeal challenging the
acquittal of the accused for murder charge. The accused had not given any
explanation as to what happened to Mahesh after he was abducted by them. The
learned Sessions Judge after referring to the law on circumstantial evidence
had observed that there was a missing link in the chain of evidence after the
deceased was last seen together with the accused persons and the discovery of
the dead body in the hospital and had concluded that the prosecution had failed
to establish the charge of murder against the accused persons beyond any
reasonable doubt. This Court took note of the provisions of Section 106 of the
Evidence Act and laid down the following principle in paras 31 to 34 of the
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.
32. 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.
33. 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 fact 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 20 process the court shall
have regard to the common course of natural events, human conduct etc. in
relation to the facts of the case.
34. When it is proved
to the satisfaction of the court that Mahesh was abducted by the accused and
they took him out of that area, the accused alone knew what happened to him
until he was with them. If he was found murdered within a short time after the
abduction the permitted reasoning process would enable the court to draw the
presumption that the accused have murdered him. Such inference can be disrupted
if the accused would tell the court what else happened to Mahesh at least until
he was in their custody.' "
again in Ponnusamy vs. State of Tamil Nadu [(2008) 5 SCC 587], this Court held:
"21. 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.
27. 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 21 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."
both the aforementioned cases, the death occurred due to violence.
In this case, there
was no mark of violence. Appellant has been found to be wholly innocent. So far
as the charges under Section 498A or Section 4 of the Dowry Prohibition Act is
concerned, the evidence of the parents of the deceased being P.W. 1 and P.W. 2
as also the mediators P.Ws.4 and 5 have been disbelieved by both the courts
below. That part of the prosecution story suggesting strong motive on the part
of the appellant to commit the murder, thus, has been ruled out.
we may notice that in Mohd. Zahid (supra), this Court opined:
"Of course, the
prosecution has established that the appellant was the only person in the
company of Jabeena and her child at the relevant time on the fateful day. But
this again stops the prosecution case in the realm of suspicion, which by
itself cannot be substituted for hard evidence. Aware as we are of the fact, a
budding life came to an unfortunate premature end, our jurisprudence will not
permit us to base a conviction on the basis of the evidence placed by the
prosecution in this case 22 and the benefit of a reasonable doubt must be
given to the appellant."
Sharad Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC 116], this
Court has laid down the parameters for arriving at a opinion in regard to proof
of a prosecution case on the basis of the circumstantial evidence, stating:
"153. A close
analysis of this decision would show that the following conditions must be
fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances
from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here
that this Court indicated that the circumstances concerned 'must or should' and
not 'may be' established. There is not only a grammatical but a legal
distinction between 'may be proved' and 'must be or should be proved as was
held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra [(1973) 2
SCC 793] where the following observations were made: (SCC para 19, p.807: SCC
(Cri) p.1047] Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a Court can convict, and the mental distance
between 'may be' and 'must be' is long and divides vague conjectures from sure
23 (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.
154. These five
golden principles, if we may say so, constitute the panchsheel of the proof of
a case based on circumstantial evidence."
It was furthermore
"163. We then
pass on to another important point which seems to have been completely missed
by the High Court. It is well settled that where on the evidence two
possibilities are available or open, one which goes in favour of the
prosecution and the other which benefits an accused, the accused is undoubtedly
entitled to the benefit of doubt. In Kali Ram v. State of Himachal Pradesh
[(1973) 2 SCC 808], this Court made the following observations:
Another golden thread
which runs through the web of the administration of justice in criminal cases
is that if two views are possible on the evidence adduced in the case, one
pointing to the 24 guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. This principle has a
special relevance in cases wherein the guilt of the accused is sought to be
established by circumstantial evidence."
again in Vinay D. Nagar vs. State of Rajasthan [(2008) 5 SCC 597], this Court
principle of law is well established that where the evidence is of a
circumstantial nature, circumstances from which the conclusion of guilt is to
be drawn should in the first instance be fully established, and the facts, so
established, should be consistent only with the hypothesis of the guilt of the
accused. The circumstances should be of a conclusive nature and they should be
such as to exclude hypothesis than the one proposed to be proved. In other
words, there must be chain of evidence so complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the accused
and it must be such as to show that within all human probability the act must
have been done by the accused."
Court in K.T. Palanisamy vs. State of Tamil Nadu [(2008) 3 SCC 100], held:
"18. All the
prosecution witnesses are related to the deceased. It is difficult for us to
believe that all the witnesses saw the deceased accompanying the accused
persons one after the other at different places. Therefore, chances of their
deposing falsely cannot be ruled out. Be that as it may, when the offence is
said to have been committed and the 25 circumstantial evidence is made the
basis for establishing the charge against the appellant, indisputably all the
links must be completed to form the basis for his conviction."
circumstance which had weighed with the High Court was inability on the part of
the appellant to prove his defence as stated in his examination under Section
313 of the Code of Criminal Procedure, which reads as under:
"At the time of
the marriage I did not ask for any Sreedhanam. Further, as per our custom in
our caste I had offered the Kodi and Mangal Sutra, to my wife. Further, at the
time of the marriage my father in law and mother in law had no means to offer
the Sreedhanam and therefore I did not ask for the same are anticipated for the
same. Myself and my wife had been living very happily. My wife gave birth to a
child at Appakudal, Sakthi Sugar Hospital and the expenses pertaining to the
delivery had been borne by me. After the delivery my wife and the child had
been taken to our house.
Again my wife
conceived. Myself, and my wife along with my parents were living happily. On
26.05.99 night after watering the field and when I came to the house around
5.00 a.m. my wife was found dead and immediately I conveyed the information to
all. My mother-in-law and father- in-law demanded that the properties should be
settled on my child but I refused by stating that I will protect my child.
Hence, as and after thought they had foisted the false case against me.
I am innocent."
finding of the High Court that appellant had to prove title of his land ex
facie is incorrect. P.W. 1 categorically stated that appellant had three acres
of land. P.W. 3 also accepted that land of the appellant is almost by the side
of his land. In view of the admission made by the prosecution witnesses, the
High Court, in our opinion, committed a serious error in arriving at a
conclusion that he did not possess any land whatsoever. Mr. Kanagaraj, however,
would submit that even if he had gone for irrigating his land, the same may not
take much time. In any event, having regard to the evidence of P.W. 3, it is
wholly unlikely that he was absent from his house.
There are two aspects
of the matter. One is that the reasoning of the High Court that he did not have
any land whatsoever and, therefore, he must be presumed to have been in his
house only appears to be wholly incorrect. But even assuming that he did not
have any land and he in fact went to P.W. 3 for the purpose of taking his wife
to hospital may not by itself be a ground for holding him guilty. Failure to
prove the plea of alibi and/or giving of false evidence itself may not be
sufficient to arrive at a verdict of guilt; it may be an additional
circumstance. But before such additional circumstance is taken into
consideration, the prosecution must prove all other circumstances to prove his
aspect of the matter cannot be lost sight of. According to P.W. 2, police had
already arrived when they reached at the place of occurrence on the next day
morning. P.W. 2 in his evidence, stated:
ourselves along with the relatives reached the village of my son-in-law it
would be 6.00 or 7.00 a.m. While we went there the police were present, who had
enquired the villagers and ourselves. The Tahsildar had made the enquiry but I
do not remember the date."
The said statement
was corroborated by P.W. 3 in his evidence, stating:
"I went and
conveyed the information to her mother and again returned where the wife of the
accused was lying and he could be around 4 or 5 a.m. I am not aware as to who
had conveyed the information to the police. Within a short time after I went
there the police arrived and the father-in- law and mother-in-law of the
accused arrived around 9'o clock. Prior to the arrival of the father- in-law
and mother-in-law of the accused the police enquired me, and also the
neighbours. After the arrival of father-in-law and mother-in-law of the accused
they were enquired by the police."
P.W. 11 - Sivakumar,
Sub-Inspector in his evidence could not say at what time he had arrived at the
place of occurrence when a pointed question was put to him.
police must have received some information. Why the other information was
suppressed by the prosecution has not been explained. In a situation of this
nature particularly if an FIR was lodged after recording the statements of the
witnesses, another FIR would not be admissible in evidence and ordinarily an
investigation cannot be started without recording the FIR.
Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654], the same was
held to be one of the circumstances against the prosecution, stating:
"The High Court
has also pointed out that no reliance could be placed on the FIR which contains
the names of the assailants because PW 1 in his cross-examination has admitted
that the FIR was taken down after the Inspector visited the site and they were
then taken to the police station."
a plastic bottle was found near the cot. It was seen by P.W. 3. However, his
statement that he did not find any smell coming out from the mouth of the
deceased is difficult to accept. He is not an expert. It is wholly unlikely
that he having observed that death had already taken place, he would smell the
mouth of the deceased. The possibility that 29 having seen the bottle which
admittedly at one point of time contained some poison, appellant's assuming
that she had consumed poison and rushing to the house of the P.W. 3 who might
have been in a position to make arrangement for shifting her to hospital cannot
be ruled out. In so assuming, he might have committed a mistake but it is also
difficult to arrive at a definite conclusion that only because a plastic bottle
was found, appellant must have deliberately kept it so as to raise a false
plea. We do not think that any such conclusion can be arrived at. If such a
conclusion was arrived at, the same would amount to surmise and conjecture. The
High Court was considering a judgment of acquittal; it set aside a part of the
finding of the learned Sessions Judge. It could not have interfered with the
judgment of acquittal if two views were possible. The judgment of the learned
Sessions Judge, in our opinion, cannot be said to be wholly unreasonable or
otherwise perverse. Circumstances brought on record by the prosecution, in our
opinion, are not such which would lead to a definite conclusion that appellant
and appellant alone had committed the offence. In the aforementioned situation,
the High Court should have approached the case with some caution.
K. Prakashan vs. P.K. Surenderan [(2008) 1 SCC 258], this Court held:
"We, therefore, are of the opinion that keeping in view the peculiar fact
situation obtaining in the present case it cannot be said that the judgment
passed by the learned trial judge was perverse or suffered from any legal
infirmity. It was not a case where the learned trial judge failed to consider
the evidence brought on record and/or misappreciated the same."
the reasons aforementioned, the impugned judgment of the High Court cannot be
sustained, which is set aside accordingly. The appeal is allowed. Appellant is
in custody. He is directed to be set at liberty forthwith unless wanted in any
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