SUBRAMANIAM v. STATE OF TAMIL NADU & ANR

Citation: [2009] 9 S.C.R. 725

Court: Supreme Court of India

Bench: S.B. SINHA, CYRIAC JOSEPH

Case summary

SUBRAMANIAM v. STATE OF TAMIL NADU & ANR.pdf

Judgment text

[2009] 9 S. C. R. 725 SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. (Criminal Appeal No. 774 of 2006) MAY 13, 2009 [$. 8. SINHA AND CYRIAC JOSEPH, JJ. ] Penal Code, 1860: ss. 302 and 498-A - A married woman found dead in her matrimonial home - FIR against husl:u~nd for Qffence$ punishal:)le ulss 302, 498-A /PC ~md s. 4 of [)owry PrqhJ! Jition Act - Acquittal by trial court - Cqnviction by High Court - HELD: Circumstances brought on record by prosecution are not such which would lead to a definite conclusion that it was 0 t, only the accused who cummitted the offence - Failure to prove plea of alibi may not be sufficient to record a finding of guilt - High Court in an appeal against acquittal could not have interfered if two views were possible - Judgment of trial court cannot be said to be unreasonable or perverse - Judgment of High Court set aside - Circumstantial evidence - Appeal against acquittal.

"' • The accused-appellant was prosecuted for 1 commission of offences punishable u/ss 498-A and 302 IPC as also u/s 4 of the Dowry Prohibition Act, 1961. The wife of the accused was found dead in her matrimonial home at 1. 1,00 P. M. on 26. 5. 1999. On the request of the accused, PW-3 went to the house of his in-laws (PW-1 and PW-2) to inform them, and they reached the place of ~ . i_ncident at about 9. 00 A. M. in the following morning. On ' the basis of a written report alleging that the deceased was subjected to cruelty and/or harassment at the hands of her husband and in-laws, as sufficient dowry was not given in her marriage, an FIR was lodged at about 11. 00 ~ A. M. The trial court acquitted the accused of all the charges. On appeal by the State, the High ~ourt maintaining the acquittal of the accused u/s 498-A IPC and s. 4 of the Dowry Prohibition Act, convicted and sentenced him u/s 302 IPC.

In the appeal filed by the accused, it was contended for the appellant that the death of his wife could not have been caused by smothering as was tried to be proved by + the prosecution; that the circumstances relied upon by High Court did not form a complete linkin the chain to arrive at the guilt of the appellant; and that the police having already reached the place of occurrence early in the morning as per evidence of PW-2 and PW-3, no reliance could be placed on the FIR which was lodged by PW-1 at 11. 00 A. M. in the police station. The respondent-State contended that the High Court rightly convicted the accused hc:ding that the deceased having ) died on unnatural death and both the husband and the wife living together and were last seen together, it was for the accused to explain as to how his wife died, a. nd that the plea of alibi taken by the accused was not proved. Allowing t"e appeal, the Court HELD: 1.

Though the doctor (PW-10) who conducted f I ~ the autopsy, state in her report that the death was caused by asphyxia, may be due to smothering, but in her cross examination she admitted that no symptoms of asphyxia were found. Besides, no evidence of violence was found in the shape of external marks surrounding the mouth and nostrils or inside the mucosal surface, or on the chest. The expert should have been forthright in her view Iin regard to the cause of death. A different canclusion 'r was required to be arrived at keeping in view the fact that a large number of symptoms, which ordinarily point out to the cause of death of asphyxia by smothering were absent. In the circumstances, the Sessions Judge rightly opined that death might not have been caused by asphyxia, [Para 6, 8 and 10] [734-F-G; 738-G; 739-G-H; 740-A-B] Mohd. Zahid vs. State of T. N. 1999 SCC (Crl. ) 1066, relied on.

ve hi~ defence ~li~i as s@ted in his examination u/ s 313 of the Code of Criminal Procedure, 1973 to the effect that on the fateful r. ight he was out in connection J with irrigating his field and reached home at around 5. 00 A. M. The 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 committed a i- I serious error in arriving at a conclusion that he did not -J possess any land whatsoever. Even assuming that the appellant 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 be 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 i-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. [Para 22 and 23] [749-G; 750-B-C, E-H; 751-A] 3. 2. Actmittedly, a plastic bottle was found near the 3. 2. Admittedly, a plastic bottle was found near the cot. The possibility that having. seen the bottle which admittedly at one point of time contained some poison, appellant's assuming that the deceased 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, the appellant must have deliberately kept it so as to raise a false plea. Such a conclusion would amount to surmise and conjecture. [Para 27] [752- E-G] 4. As regards the FIR, according to FW. 2, police had already arrived when they reached at the place of occurrence on the next day morning. P. W. 11 the Subt, Inspector, in his evidence could not say at what time he arrived at the place of occurrence when a pointed question was put to him. The 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, t another FIR would not be admissible in evidence and i ordinarily an investigation cannot be started without recording the FIR.

[Para 24 and 25] [751-8-H; 752-A-B] Mohar Singh vs. State of Rajasthan & Ors. (1998) 9 SCC 654, relied on. 5. The High Court was considering a judgment of acquittal; it set aside a part of the finding of the Sessions Judge. It could not have interfered with the judgment of acquittal if two views were possible. The judgment of the Sessions Judge cannot be said to be wholly unreasonable or otherwise perverse. Circumstances +br9ught on record by the prosecution are not such which would lead to a definite conclusion that appellant and none else had committed the offence. In such a situation, the High Court should have approached the case with some caution. The Judgment of the High Court cannot be'. sustained and is set aside. [Parii 27 and 29] [752-G-H; 753-A, D] K. Prakashan vs. P. K. Surenderan (2008) 1 SCC 258, relied on. Case Law Reference: 1999 sec (Crl. ) 1066 relied on Para 12 -! . (1999) 4 sec 370 referred to Para 13 (20P6) 10 sec 681 distinguished Para 15 (2008) 5.

sec 587 distinguished Para 16 . 1 (1984) 4 sec 116 relied on Para 19 (2008) s sec 597 relied on Para 20 (2008) 3 sec 1oo relied on Para 21 (1998) 9 sec 654 relied on Para 26 ·-f· I t (2008) 1 sec 258 relied on Para 28 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 774 of 2006. From the Judgment & Order dated 15. 12. 2005 ofthe High Co$rt of Judicature at Madras in Criminal Appeal No. 788 of 20 ·1 and Criminal Revision Case No. 264 of 2001. + Dhruv Mehta, S. Balaji, V. N. Subramanian, Madhusmita - Bo'ra and P. V. Yogeswaran for the Appellants. V. Karangaraj, S. Thananjayan, N. Sheba, Sri. Ram J. and H' T~alapapathy for the Respondents. -t The Judgment of the Court was delivered by 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 -j. 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. -. ,. , 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 t 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 f Section 4 of the Dowry Prohibition Act. 2. Before 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 -. Ideceased; 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 8 is Head Constable in Vellithiruppur Police Station. P. W. 9 - Ganesan is Grade II Constable inVellithiruppur Police Station. +- P. W. 10- Dr. Ranjini who did post-mortem on the dead body; P. W. 11 - Sivakurnar 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. 3. The learned Sessions Judge by a judgment and Order dated 14. 11. 2000 recorded a judgment of acquittal in favour . 1 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 t l findings were unreasonable. 4. Mr. Dhtuv Mehta, learned counsel appearing on behalf of the appellant for assailing the judgment of the High Court i would contend: i, The cause of death of the deceased cannot be said to have been caused by smothering. r + 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 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 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. 6. Cause of death as stated in the post-mortem report is as under: "Appearances found at the Pest-Mortem: Moderately nourished, 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. Abdomen distended. EXTERNAL INJURIES - NIL INTERNAL 1. 2. 12.

Kidneys both 160 gms. Normal ..... + - A· 16. Head - Normal 18. Brain - Normal, 1200 gms. 1 Viscera preserved for Chemical analysis. ... OPINION:- The deceased would appear to have died of 28 to 36 hrs. prior to autopsy. Final opinion pending on Chemical Analysis. ~ Forensic Report: RT. 2756/99 to H. 928/99 DT. 30. 06. 99 Viscera: 1. Stomach and its contents 2. Intestine and its contents 3. Liver 4. Kidneys 5. Lungs 6. Preservative :t- The above six articles were examined but poison was not detected in any of them. Opinion as to cause of death: {a) Reserved pending report of Viscera (P) The deceased would appear to have died of 28 to --1- 36 hrs. his prior to autopsy. ~ FINAL OPINION:- The death is due to Asphyxia. May be due to smothering. " The post-mortem 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. " 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 -----t oxygen in the blood pertaining to the atoms would be very much less. The face and head would also be found distended. It was --if 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 -11' found. Further there should be camerine with kolappan with intersenian espeomia. But the aforesaid were not found in the dead body of the Jeceased 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 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: - 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 tt? e father-in- I law and mother-in-law of the accused arrived around 9'o clock. Prior to the arrival of the father-in-law and motherin-law of the accused the police enquired me, and also the neighbours. After the arrival of father-in-law and motherin-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. 25.

The police must have received some information. Why . • the other information was suppressed by the prosecution has k not been explained. In a situation of this nature particularly if an FIR was lodged after recording the statements of the witnesses, another FIR wo. uld not be admissible in evidence and ordinarily an investigation cannot be started without recording the FIR. 26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 sec 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. " 27. Admittedly, 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 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 assumi_ng, 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 -j.. to surmise and conjecture.

The High Court was considering a judgm~nt of acquittal;. it set aside a part o_f the finding of the learned Sessions Judge. It ·could not have interfered with the judgment of acquittal if two view~ were possible. The judgment ot' 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 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 misapprec;iated the $~me. " 29. For the reasons aforementioned, the impugned judgment of th~, 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 other case. R. P. Appeal allowed.