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TMI Blog2009 (5) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Appeal allowed. - APPEAL NO. 774 OF 2006 - - - Dated:- 13-5-2009 - SINHA, S.B. AND JOSEPH, CYRIAC, JJ. JUDGMENT S.B. SINHA, J. 1. Appellant 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 si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 were unreasonable. 4. Mr. 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. ii. The 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.3, no reliance can be placed on the FIR which was lodged by P.W.1 at 11:00 a.m. in the police station. 5. Mr. Kanagaraj, learned Senior Counsel app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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: Further there 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 to die. 7. Both 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. 8. The learned author defines application of the ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strils. 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. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Homicidal 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 .. 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 buried alive. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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: Further the 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 on that ground it cannot be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 accept. 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 coming to the conclusion that Jabeena's death is proved by the prosecution to be homicidal. 13. In 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 subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 reports: 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 fossilized 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 inferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8A 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. 18. However, 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 and the benefit of a reasonable doubt must be given to the appellant. 19. In 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 bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pointing to the 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. 20. Yet again in Vinay D. Nagar vs. State of Rajasthan [(2008) 5 SCC 597], this Court held: 9. The 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. 21. This Court in K.T. Palanisamy vs. State of Tamil Nadu [(2008) 3 SCC 100], held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 guilt. 24. Another 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: While, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 28. In 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 fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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