circumstantial evidence = where the death has been caused by homicidal violence and the appellant who had himself taken the deceased to the hospital and made a false statement to the Doctor that she had suffered a cardiac arrest which was found to be false after the postmortem report was received and the nature of injuries which were attributed on the body of the deceased of which a reference has been made clearly establish that it is the case where none other than the accused appellant has committed a commission of crime with intention to commit the murder of his own wife who was at the advanced stage of pregnancy.
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1008 OF 2010
R. DAMODARAN ...APPELLANT(S)
VERSUS
THE STATE REPRESENTED BY THE
INSPECTOR OF POLICE ...RESPONDENT(S)
J U D G M E N T
Rastogi, J.
1. The accused appellant was charged for offence under
Section 302 IPC for the murder of his own wife Nirmala Mary while
she was at the advanced stage of her pregnancy. After facing trial,
he was held guilty of charge of murder of his wife under Section 302
IPC and was awarded life imprisonment by the learned trial Judge
by judgment dated 3rd September, 2007 and confirmed by the High
Court by judgment impugned dated 10th July, 2009.
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2. The case of the prosecution is that marriage of deceased
Nirmala Mary and accused appellant was solemnised on
17th February, 1997. The appellant used to frequently change his
rented accommodation and whenever he changed the rented
accommodation, he used to quarrel with the deceased and send her
to her father to fetch money. Her father extended monetary help to
the extent it was possible.
3. Since the date they shifted to Walles Garden area, the
accused appellant used to come home after consuming liquor and
invariably had a quarrel with the deceased and beat her. Deceased
lodged complaint at the Police Station many a times in this regard
and in continuation of the occurrence on the fateful night of 28th
October, 2005, while he was quarrelling with deceased Nirmala
Mary, he picked up a log from the house and beaten deceased
Nirmala Mary and caused internal injury in her stomach and
murdered her.
4. On the date of the incident, that is 29th October, 2005,
Mrs. Glory(PW 2-aunt of the deceased) found her standing in the
street. When she called the deceased (Nirmala Mary) and asked her
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what had happened, she replied that her husband had beaten her
up with a wooden log. Since there was a regular quarrel taking
place between husband and wife, Mrs. Glory(PW 2) told the
deceased that after she come back, she would take the deceased to
the hospital for treatment. After returning from work at home, she
was informed that the deceased had been taken to the hospital in a
serious condition. At about 4.30 p.m. on the same date, i.e. 29th
October, 2005, the accused appellant brought his wife to the
Kilpauk Medical College and Hospital, Chennai and complained
that she had got cardiac arrest. The Doctor medically examined
and found her dead. On receipt of the death intimation, PW 8, the
Sub Inspector of Police, attached to the Police Station proceeded to
the hospital and prepared the inquest report and FIR, in the first
instance, was registered under Section 174 Cr.PC for suspicious
death.
5. After the autopsy on the dead body was conducted by PW 7,
the Professor of Forensic Medicine, Senior Civil Surgeon,
Government Kilpauk Medical College, Chennai, it was opined that
the deceased died of shock and haemorrhage due to thoracic
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injuries and on the opinion expressed in the post-mortem report,
the case under Section 302 IPC was registered.
6. Pending investigation, the appellant was arrested. In
order to substantiate the charge, the prosecution marched 11
witnesses and also relied on 17 exhibits and 4 material objects. On
completion of the evidence on the side of the prosecution, the
accused was questioned under Section 313 CrPC to the
incriminating circumstances found in the evidence of the
prosecution witnesses, which he flatly denied as false and no
defence witness was examined.
7. It is not in controversy that the incident took place on
29th October, 2005 during day hours and the dead body of the
deceased was taken by the accused appellant to the hospital where
she was declared dead by the Doctor (PW 6). The case of the
prosecution was that the appellant attacked with a wooden log and
caused her death because of homicidal violence. The defence plea
was that it was a cardiac arrest. Even from the evidence of the
Doctor PW 6, it would be clear that when the accused appellant
brought the deceased to the hospital, she was dead but still
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informed the Doctor that she had a cardiac arrest. In the medical
opinion canvassed through PW 7 Doctor, it was opined that she
died out of shock and haemorrhage due to thoracic injuries because
of homicidal violence.
8. It is true that the prosecution had no direct evidence to
offer. It rested its case upon circumstances which would indicate
that in the past, he was ill-treating her and there were complaints
given to the police, and they were enquired by PWs 9 and 10, the
police officials, attached to Thousand Light Police Station. On the
fateful day, the accused appellant alone was present with his family
and they living together.
9. House of Mrs. Glory, the aunt of the deceased is situated
just opposite to their house and she had recorded her evidence as
PW 2 that on 29th October, 2005, when she was about to start for
work in the morning hours, she found the deceased standing in the
street and when she called her, the deceased informed that her
husband had beaten her. It is further corroborated from the postmortem report of the deceased who was at the advanced stage of
pregnancy at that time.
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10. It was the appellant himself who took her to the hospital
and made a false statement that she suffered a cardiac arrest but
after the autopsy was conducted on the body of the deceased, it was
opined that she died out of shock and haemorrhage due to thoracic
injuries. In addition to other circumstances, the prosecution was
able to establish that it was none other than the appellant who had
committed the crime and he wanted to show his innocence by
taking the deceased to the hospital and made a false statement that
she suffered a cardiac arrest which on receipt of the post-mortem
certificate, was found to be false where it was established that the
death was caused by homicidal violence.
11. The following injuries were found on the body of the
deceased:-
“(1)Bluish contusion seen over left mid-axillary line from 3-7
ribs level.
(2)Thick layer of reddish contusion seen in the sub cutanious
and inter costal region in the left mid-axillary line from 3-10
ribs.
(3)Fracture of 5-6 ribs from mid-axillary line on left side.
(4)Left thoracic cavity contains 1100 gms of clotted blood.
(5)Laceration of left lower iobe of lung(outer border) 3 X 2 X 2
cms
(6)Reddish left temporal contusion in the sub scalp region.
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All the above injuries are antemortem in nature.”
12. The statement of PW 7 Doctor and the medical evidence
brought on record establish that the injury nos. 1 to 6 were caused
with blunt weapon which resulted into death of the deceased.
Thus, the ocular evidence of Mrs. Glory(PW 2 - aunt of the
deceased) is corroborated with the medical evidence of Doctor(PW
7).
13. In a case based on circumstantial evidence, the settled
principles of law are that the circumstances from which the
conclusion of guilt is to be drawn should be fully proved and such
circumstances should be conclusive in nature and moreover the
circumstances should be complete and there should be no gap left
in the chain of events. However, the circumstances must be
consistent only with the hypothesis of the guilt of the accused and
inconsistent with the innocence. The principle which has to be kept
in mind in a case of circumstantial evidence has been laid down by
a three Judge Bench of this Court in the judgment reported in
Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4
SCC 116 which reads as under:-
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“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 Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 where the
observations were made:
“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 conclusions.”
(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.”
14. It was further followed by a three Judge Bench in Padala
Veera Reddy Vs. State of Andhra Pradesh and Ors. 1989 Supp
(2) SCC 706 wherein this Court held as under:-
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“10. Before adverting to the arguments advanced by the learned
Counsel, we shall at the threshold point out that in the present case
there is no direct evidence to connect the accused with the offence in
question and the prosecution rests its case solely on circumstantial
evidence. This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence such evidence
must satisfy the following tests:
“(1) the circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
(See Gambhir v. State of Maharashtra [(1982) 2 SCC 351]”
15. Taking note of the principles which has been laid down
by this Court and the circumstances which the prosecution has
established in a chain of events leave no matter of doubt that it is
none other than the appellant who had committed the crime of
murdering his own wife who was at the advanced stage of
pregnancy, and taken the dead body to the hospital and made a
false statement that she had got a cardiac arrest. Initially, the FIR
was registered on suspicion but after the autopsy on the body of the
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deceased was conducted, taking note of the post-mortem report, a
case under Section 302 IPC was registered. Such incriminating
links of facts could, if at all, have been explained by the appellant
and nobody else, they being personally and exclusively within his
knowledge. Of late, Courts have, from the falsity of the defence plea
and false answers given to Court, when questioned, found the
missing links to be supplied by such answers for completing the
chain of incriminating circumstances necessary to connect the
person concerned with the crime committed.
16. After we have gone through the record and findings
recorded by the learned trial Court and after being revisited by the
High Court under the impugned judgment which we have also
taken away for our satisfaction, the incriminating circumstances
pointed out, in our view, are sufficient with reasonable certainty on
the established facts, which connect the accused with the
commission of crime of committing the murder of his own wife
(Nirmala Mary).
17. Learned counsel for the appellant, in the first instance,
tried to persuade this Court that there are missing links in the
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circumstantial evidence on the basis of which the charge for offence
under Section 302 IPC has been established against him but when
this Court was not inclined to interfere with the finding and the
guilt which was recorded by the learned trial Court and affirmed by
the High Court under the impugned judgment, learned counsel for
the appellant submitted that the offence of the nature which has
been committed as alleged if is taken at the face value may not fall
under Section 302 IPC but may fall under Section 304 Part II IPC.
18. The present case squarely rests on circumstantial
evidence where the death has been caused by homicidal violence
and the appellant who had himself taken the deceased to the
hospital and made a false statement to the Doctor that she had
suffered a cardiac arrest which was found to be false after the postmortem report was received and the nature of injuries which were
attributed on the body of the deceased of which a reference has
been made clearly establish that it is the case where none other
than the accused appellant has committed a commission of crime
with intention to commit the murder of his own wife who was at the
advanced stage of pregnancy.
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19. We find no substance in the appeal and is accordingly
dismissed.
20. The appellant was released on bail by this Court by Order
dated 6th April, 2018, the bail bonds stand cancelled. The appellant
is directed to surrender within four weeks from today and undergo
the remaining part of sentence. If he fails to surrender, action may
be taken in accordance with law.
21. Pending application(s), if any, stand disposed of.
……………..…………………………J.
(ASHOK BHUSHAN)
……………………………………….J.
(AJAY RASTOGI)
NEW DELHI
FEBRUARY 23, 2021
