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Friday, January 9, 2015

MURDER - NOT SUICIDE - there was only a strangulation mark from the right side of the neck to the left side of the neck on the front side alone and therefore there would have been no scope for the appellant to have used a rope to tie around the neck to strangulate the deceased is concerned, the said contention has to be rejected at the very threshold since if the appellant had used the cable from behind the deceased on her neck and thereby suffocated the deceased, there would have been no scope at all for any cable mark on the backside of the neck.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.2475 of 2009

Munni @ Syed Akbar                           …. Appellant
                                   VERSUS

State of Inspector Of Police,
All Women Police Station,
Gobichettipalayam,
Erode                                            ….Respondent(s)

                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

1.    This appeal at the instance of A1, who is  the  appellant  herein,  is
directed against the judgment of the  Division  Bench  of  the  Madras  High
Court dated 16.08.2007, passed in Criminal Appeal No.434 of 2006.

2.    Brief facts which are required to be stated are that the appellant  is
the husband of the deceased Gulsara Banu.  Along  with  the  appellant,  his
parents were also proceeded against, who were arrayed as  A2  and  A3.   All
the three accused were charged for offences under Sections 498(A),  302  and
201 of I.P.C. The parents of the  appellant  viz.,  A2  and  A3  were  found
guilty of the offences under Section 498(A)  of  I.P.C.  as  well  as  under
Section 4 of the Dowry Prohibition Act,  1961.   A2  who  was  also  charged
under Sections 302 and 201 of I.P.C. was acquitted of those charges. A2  and
A3 have already undergone the sentence, even while  the  appellant’s  appeal
was preferred before the High Court. The High  Court  therefore  dealt  with
the case of the appellant alone.

3.    As far as the occurrence is concerned, the appellant  got  married  to
the  deceased  on  27.07.1997.   They  were  living  in  a  rented  premises
belonging to P.W.3 at Kurumanthur.  It was  a  portion  of  the  house.  The
occurrence took place in the morning hours  of  12.08.2004.   P.W.1  is  the
complainant who is the  father  of  the  deceased.   According  to  him,  he
received a phone call from  the  accused  at  3.00  p.m.  stating  that  the
deceased complained  of  stomach  pain  and  wanted  him  to  come  over  to
Kurumanthur immediately.  Such information was  also  passed  on  to  P.W.2,
uncle of the deceased, by around 3.30 p.m. and he  also  immediately  rushed
to Kurumanthur which was just 50 kms  away  from  his  place.   After  P.W.1
reached  the  place  of  occurrence  at  around   10.00   p.m.,   he   found
strangulation marks on the neck  of  the  deceased.   He  preferred  Ex.P-1-
Complaint, before  the  All  Women  Police  Station,  Gobichetipalayam.  The
Complaint was lodged with P.W.13,  the  Inspector  of  Police  of  the  said
police station.

4.    P.W.13 registered the said complaint in Crime No.5  of  2004  for  the
offences under Section 498(A) of I.P.C. and Section 174 of Cr.P.C. and  sent
the Express Report to the Judicial Magistrate No.II,  Gobichetipalayam.  She
stated to have inspected the place of occurrence and conducted  the  Inquest
over the dead body between 2.30  a.m  and  5.30  a.m.  in  the  presence  of
Panchayatdars  and  prepared  Ex.P-17-Inquest  report.   She  recorded   the
statements of P.Ws.1 to 4 and other witnesses and sent the dead body of  the
deceased  along  with  Ex-P-4  requisition  through  P.W.11   woman   police
constable to the Government Hospital, Gobichetipalayam for  postmortem.  She
recovered M.Os.1 to 4 and M.O.7  in  the  presence  of  witness  P.W.7.  She
forwarded M.Os.9 to 14 along with Form-95 through P.W.11.   After  examining
P.W.1, P.W.3, P.W.4 and  P.W.5  on  15.08.2004  and  after  recording  their
statements it came to light that it was not a case of suicide and  therefore
P.W.13 altered the offences under Sections 498(A), 302  r/w  201  of  I.P.C.
and prepared Ex.P.18-Special Report and forwarded  the  same  to  the  Court
again. The accused were arrested  thereafter  on  16.08.2004  at  9.45  p.m.
With the admissible portion of the confession of the  appellant  in  Ex.P-9,
P.W.13 recovered T.V.S.50 brake cable wire M.O.8 from the  workshop  of  the
appellant.  She also recovered green colour wire M.O.7 at  the  instance  of
the appellant in the presence of P.W.10.

5.    P.W.9 who conducted the postmortem, issued Ex.P-8-  Postmortem  Report
on 13.08.2004. In Ex.P-8,  P.W.9  reserved  his  opinion  awaiting  chemical
analysis  report.   Chemical  analysis  report  Ex.P-6  was  issued  by  the
Professor of Forensic Medicine and District Police  Surgeon,  Coimbatore  in
which inter alia it was stated “HPE poison was detected Hyoid  Bone  intact.
Death may be due to Asphyxia due to Straglets.”  After the  receipt  of  the
aforesaid report, P.W.9 expressed his opinion that  the  death  was  due  to
strangulation. The appellant along with A2 and A3 were charged for  offences
under Sections 498(A), 302 read with 201 as well as Section 4 of  the  Dowry
Prohibition Act, 1961.  As stated earlier, we are concerned  only  with  the
appellant who was the first accused.

6.    The trial Court based on the evidence placed before it, convicted  the
appellant for offences under Sections 302, 498(A) read with Section  201  of
I.P.C.  He was sentenced to life imprisonment for an offence  under  Section
302 of I.P.C. apart from fine  of  Rs.1,000/-  and  in  default  to  undergo
rigorous imprisonment for one year.  He was sentenced  to  undergo  3  years
imprisonment for an offence under Section 201 apart from  fine  of  Rs.500/-
and in default to undergo rigorous imprisonment  for  six  months.   He  was
also  sentenced  under  Section  498(A)  to  undergo  two   years   rigorous
imprisonment and to pay a fine of Rs.500/- and in  default  to  undergo  six
months rigorous imprisonment. The sentences were to run concurrently.

7.    On appeal the Division Bench of the High Court  having  confirmed  the
conviction and sentence imposed on the appellant, the  appellant  is  before
us.

8.    We heard Dr.Sushil Balwada, learned counsel for the appellant and  Mr.
M. Yogesh Kanna, learned standing counsel for the respondent State.

9.    Dr. Balwada, learned counsel in his submissions,  after  referring  to
the evidence of P.W.13 the investigating officer submitted  that  there  was
great doubt as to whether the occurrence had taken place as narrated by  the
prosecution before the Courts below, in as much as, though P.W.1  stated  to
have lodged the  complaint  at  11.00  p.m.  on  12.08.2004,  the  case  was
registered for offence(s) under Section(s) 498(A) I.P.C. and Section 174  of
Cr.P.C. and for no reason, much later on 16.08.2004, the  case  was  altered
as one under Section(s) 302 r/w Section 201 of I.P.C. and Section 498(A)  of
I.P.C.

10.   According to the learned counsel, there was nothing to show  that  the
Express  Report  was  immediately  forwarded  to  the  Judicial  Magistrate.
Learned counsel further submitted that going by the evidence  of  P.W.3  and
P.W.4 since the body of the deceased was found hanging with  the  aid  of  a
saree and there being no eye witness to the  occurrence,  the  case  of  the
appellant that the deceased committed  suicide  by  hanging  herself  should
have been accepted and the appellant should have  been  acquitted  from  all
the charges.

11.   The learned counsel also contended that there were variations  in  the
statement of Postmortem Doctor P.W.9 and Forensic Science Laboratory  report
which also disclose that there was no overt act  to  be  attributed  to  the
appellant for the alleged killing of the deceased by strangulation with  the
aid of a cable wire.

12.   As  against  the  above  submissions,  Mr.  M.  Yogesh  Kanna  learned
standing counsel for the respondent State by drawing our  attention  to  the
evidence of P.W.9-Postmortem Doctor and Ex.P-6, the report of  the  Forensic
Science Laboratory as well as  that  of  P.Ws.1  to  4  contended  that  the
offence alleged against the appellant of homicidal  death  by  strangulating
his wife with the aid of a cable wire was conclusively proved and there  was
no reason to doubt the said conclusion reached by the trial  Court  as  well
as the High Court.

13.   The learned counsel also drew our attention to  M.O.5-the  photographs
which were marked through P.W.8-the photographer  which  also  disclose  the
case of the prosecution that the appellant strangulated his  wife  with  the
aid of a cable wire and the cause of her death was fully established.

14.   The learned counsel submitted that merely because a mark was noted  on
the neck of the deceased, which did not have a full circle on the  neck,  it
cannot be concluded that  the  appellant  did  not  cause  her  death.   The
learned counsel was at pains to show that the cable mark was visible to  the
naked eye as noted by  the  Postmortem  Doctor  P.W.9  as  well  as  Ex.P-6-
Forensic Science Laboratory report apart from strangulation  mark  found  on
the neck of the deceased which all show without any iota of  doubt  that  it
was a case  of  murder  and  that  all  the  other  attendant  circumstances
conclusively prove that it was the appellant who had  caused  the  death  of
the deceased.

15.   Having heard the learned counsel appearing for the appellant  and  the
learned standing counsel for the respondent State  and  having  perused  the
impugned judgments of the High Court and the trial  Court  as  well  as  the
material documents marked in the case,  at  the  very  outset,  it  will  be
relevant  to  note  the  incriminating  circumstances   which   were   found
established against the appellant.

16.   The appellant and the deceased were living together in a  portion  let
out by P.W.3.  On the fateful day in the  early  morning  around  3.00  a.m.
according to P.W.3, he heard shrieking noise of the deceased  and  when  the
wife of P.W.3 went and tapped the door, she  heard  the  appellant  uttering
something in Urdu to the deceased and the  deceased  herself  informed  that
she suffered a minor electric shock.  Thereafter, the deceased was  seen  by
P.W.4 in the godown where he was working, to which place, the deceased  went
and enquired about the owner of  the  godown  which  is  a  tobacco  godown.
Subsequently, P.W.4 along with one of his friends heard the  shouts  of  the
appellant and rushed to the house of the appellant and the house was  locked
from inside and they saw the appellant crying and  also  shouting  that  his
wife hanged herself from the roof with the aid of  a  saree.   According  to
P.W.4, they saw her hanging from the roof and she  was  in  a  kneeled  down
position. P.W.4 and his friend called upon the appellant to  open  the  door
to enable them to get inside in order to rescue the  deceased.   After  they
entered, they brought the body of the deceased to the floor and  found  that
she was already dead, though the appellant claimed that she was  alive.   It
was also stated by P.W.4 that  before  entering  the  house,  they  saw  the
appellant on the roof top removing some of the tiles.

17.   P.W.2 who is the uncle of the deceased stated that he  was  living  50
kms away from the place of appellant  and  the  deceased  and  that  he  got
information from the appellant that the deceased was suffering from  stomach
pain.  On hearing the said information, he along with  his  wife  rushed  to
the place of the appellant where they found the deceased lying dead  on  the
floor.  P.W.2 also stated that his wife on seeing the body of  the  deceased
noted strangulation marks on her neck,  because  of  which  P.W.2  developed
some suspicion and upon the arrival of P.W.1, the father  of  the  deceased,
they decided to lodge a complaint and that is how  the  Ex.P-1  came  to  be
lodged through P.W.1 at around 10.30 p.m. on 12.08.2004.

18.   The evidence of P.W.9-the Postmortem  Doctor  who  issued      Ex.P-8-
Postmortem Report deposed that initially when he examined the  body  of  the
deceased, he could not offer any definite opinion as  he  wanted  to  verify
the Forensic Science Laboratory  report.   Subsequently,  after  receipt  of
Ex.P-6, the report from Forensic Science Laboratory, P.W.9 gave the  opinion
that the death of the deceased was due to  asphyxia.  In  other  words,  the
theory of hanging by the deceased on her own, propounded  by  the  appellant
was found to be not true.  The report of  the  Forensic  Science  Laboratory
also confirmed that there  was  strangulation  marks  on  the  neck  of  the
deceased and that substance like cable  was  used  for  such  strangulation.
Based on the appellant’s information, M.Os.7 and 8  cable  wires  were  also
recovered. When the above circumstances  were  all  put  to  the  appellant,
there was only a simple denial and nothing more was stated on behalf of  the
appellant.

19.   In the above stated background, when we  consider  the  contention  of
the appellant, it was mainly  two  fold.  In  the  first  instance,  it  was
contended that as per the medical evidence what was noted  on  the  neck  of
the deceased was a cable mark from the right side to the left  side  of  the
neck and not all around the neck of the deceased  which  would  not  support
the theory of strangulation.  It was then contended that  even  as  per  the
version of P.W.4 and his friend who helped the appellant to lower  down  the
body, which was hanging from the roof top, they found the  deceased  hanging
with the aid of  a  saree  around  her  neck.   By  referring  to  the  said
evidence, it was contended that it was a definite case of suicide and not  a
homicidal death.  Though in the first blush such a contention appears to  be
appealing,  on  a  deeper  scrutiny,  we  find  that  the  same  was  wholly
unbelievable and does not merit any consideration.

20.   It has come out in scientific evidence and expert opinion without  any
scope of ambiguity that there was strangulation marks on  the  neck  of  the
deceased and that there was also a rope mark which could  have  been  caused
with the aid of the cable wire viz., M.Os.7 and  8.   When  such  scientific
evidence was found to be existing the story spun by the appellant  that  his
wife was hanging from the roof with the aid of a saree has been found to  be
nothing but a concocted one designed to escape from  his  culpability.   The
further fact that the appellant was found sitting on the roof  top  removing
certain tiles found to be another well  thought  out  drama  played  by  the
appellant to make P.W.4 and his friend to believe as though he was  innocent
and he had nothing to do with the killing of  his  deceased  wife.   On  the
whole the episode was attempted by the appellant to show as though his  wife
committed suicide while it has come out in evidence through P.W.4  that  the
deceased was found in a kneel down position as there was  hardly  four  feet
gap in between the top of the  cot  and  the  roof.   The  appellant  having
successfully carried out his evil design in  the  killing  of  the  deceased
with the use of M.O.8 cable, however, made an unsuccessful  effort  to  make
it appear as though the deceased was hanging from the roof top with the  aid
of a saree.

21.   If really the deceased had hanged herself with the  aid  of  a  saree,
there was absolutely no scope for a cable mark on her neck.  There was  also
no breaking of the hyoid bone or the trachea.   As  far  as  the  contention
that there was only a strangulation mark from the right side of the neck  to
the left side of the neck on the front side alone and therefore there  would
have been no scope for the appellant to have used a rope to tie  around  the
neck to strangulate the deceased is concerned, the said  contention  has  to
be rejected at the very threshold since if the appellant had used the  cable
from behind the deceased on her neck and thereby  suffocated  the  deceased,
there would have been no scope at all for any cable mark on the backside  of
the neck.  P.W.9- Postmortem Doctor with the aid of Ex.P-6-Forensic  Science
Laboratory report was able to confirm without any  scope  for  contradiction
that the death of the deceased was due  to  asphyxia  by  strangulation  and
ligature marks were  found  on  the  neck  of  the  deceased.   It  was  the
appellant who was very much present at the time when the  deceased  breathed
her last.  Therefore, the best person  who  could  have  come  forward  with
appropriate explanation  to  clear  the  doubt  about  those  factors  found
established through expert and scientific evidence could have been only  the
appellant and none else.  The appellant having failed to clear  those  vital
circumstances found proved against the appellant,  the  ultimate  conclusion
of the trial Court as well as the confirmation by  the  High  Court  of  the
guilt of the appellant in the killing of the deceased falling under  Section
302 of I.P.C could  have  been  the  only  conclusion,  more  so,  when  the
appellant was found guilty of the offence under Sections 498(A) as  well  as
Section 201 of I.P.C.

22.   We have, therefore, no hesitation in  confirming  the  conviction  and
the sentence imposed on the appellant. The appeal  fails  and  the  same  is
dismissed.



...……….…….………………………………J.                 [Fakkir Mohamed Ibrahim Kalifulla]





...…….……….……………………………J.                [Abhay Manohar Sapre]



New Delhi;
October 29, 2014.

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