published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40478
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1738 OF 2007
BABU @ BALASUBRAMANIAM AND ANR. …Appellants
Versus
THE STATE OF TAMIL NADU …Respondent
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants (A1-Babu and A2-Pappathi respectively,
for convenience) were tried by the Principal Sessions Court,
Coimbatore in Sessions Case No.141 of 2000 for offences
punishable under Section 498A and Section 302 read with
Section 34 of the IPC. A1-Babu was convicted under Section
498A of the IPC and sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.500/-, in
default, to undergo further rigorous imprisonment for two
months. A1-Babu was also convicted for offence punishablePage 2
2
under Section 304 Part I of the IPC and sentenced to suffer
rigorous imprisonment for seven years for the same. A2-
Pappathi was convicted for offence punishable under Section
498A of the IPC and sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.500/-, in
default, to undergo further rigorous imprisonment for two
months. A2-Pappathi was also convicted for offence
punishable under Section 304 Part I read with Section 109 of
the IPC and sentenced to suffer rigorous imprisonment for
seven years for the same. On appeal, the Madras High Court
confirmed the conviction and sentence. Hence, this appeal,
by special leave.
2. Gist of the prosecution case needs to be stated.
A1-Babu was married to deceased-Indirani (“the
deceased”) on 11/4/1994. The couple resided in the house
of A2-Pappathi, who is the younger sister of A1-Babu. At the
time of marriage, 25 gold sovereigns were demanded by A1-
Babu and his family, but the parents of the deceased could
only give 20 gold sovereigns. After six months of marriage,Page 3
3
they demanded dowry for which Panchayat meeting was
held by the elders in the house of the deceased. The
members of the panchayat went to the house of the accused
and requested them not to threaten the deceased. After one
year, the deceased gave birth to a male child. The accused
demanded 10 gold sovereigns and cash of Rs.10,000/-.
Parents of the deceased could give only 3 gold sovereigns.
Thereafter, the couple was blessed with a daughter. This
time also, the accused demanded 10 gold sovereigns and
cash of Rs.10,000/- to purchase manure, but the parents of
the deceased could not fulfill this demand due to their
financial difficulties. A1-Babu and A2-Pappathi started
harassing the deceased. On 15/11/1998 the deceased
informed PW-2 Nataraj, her brother about the dowry demand
made by her husband and the cruelty meted out to her. The
prosecution story further goes on to say that on 16/11/1998,
PW-3 Ponnusamy, the grandfather of the deceased, visited
the house of the accused. When he reached near the house
of the accused, he heard the voice of the accused asking the
deceased as to why sum of Rs.10,000/- was not brought byPage 4
4
her. PW-3 Ponnusamy peeped through the window and saw
A1-Babu, who had caught hold of the deceased, dashing the
back of her head against a pillar. At that time, A2-Pappathi
intervened and said that the deceased should not die like
this. She asked him to pour poison in her mouth. Upon this,
A1-Babu brought poison and gave it to A2-Pappathi. A1-
Babu caught hold of the deceased and A2-Pappathi poured
the poison in the mouth of the deceased. PW-3 Ponnusamy
went inside the house and questioned them. The accused
started pacifying him and told him that they would save her
life. They asked him to remain in the house and they took
the deceased in a van to Udumalpet Government Hospital.
PW-4 Dr. Shanmugham examined the deceased and
declared her dead. He sent a report to the Udumalpet Police
Station, pursuant to which PW-11 SI Lakshmanan came to
the hospital and recorded the statement of PW-1
Subramaniya, the father of the deceased, which is treated as
FIR. On the basis of the FIR, investigation was started. After
completion of investigation, the accused came to be charged
as aforesaid. In support of its case, the prosecutionPage 5
5
examined 14 witnesses. Out of them, PW-1 Subramaniya,
PW-2 Nataraj and PW-5 Dr. Rajabalan, who conducted the
post-mortem of the deceased are crucial to the prosecution.
The accused denied the prosecution case and contended
that they were falsely implicated. Learned Sessions Judge
convicted the accused as aforesaid.
3. We have heard Mr. Ratnakar Dash, senior advocate,
appearing for the appellants and Mr. M. Yogesh Khanna,
counsel appearing for the respondent-State. Mr. Ratnakar
Dash submitted that the prosecution has failed to prove its
case beyond reasonable doubt. He submitted that learned
Sessions Judge ought to have appreciated that the evidence
on record clearly establishes that the deceased had
committed suicide. The Forensic Science Laboratory Report
(Ex-P6) is a pointer to this. It is also clear that the deceased
had consumed poison first and had suffered head injury
because of the fall sustained by her due to consumption of
poison. Counsel pointed out that the suicide note (Ex-P1)
supports the case of the accused that the deceasedPage 6
6
committed suicide. Counsel submitted that the evidence of
PW-3 Ponnusamy has rightly been rejected by the trial court
and the High Court and that has made the prosecution case
suspect. Counsel submitted that it is the accused, who took
the deceased to the hospital. The conduct of the accused
belies the prosecution case. According to the counsel, since
the prosecution has failed to prove its case beyond
reasonable doubt, the conviction of the accused deserves to
be set aside. Counsel submitted that in any case the
involvement of A2-Pappathi, the sister, who is a widow, is not
proved at all. Besides, she could not have been convicted
under Section 302 read with Section 109 of the IPC in the
absence of a charge being framed under Section 109 of the
IPC. In support of this submission, counsel relied on the
judgment of this Court in Wakil Yadav & Anr. v. State of
Bihar1
. Shri M. Yogesh Khanna, learned counsel for the
State submitted that the impugned judgment deserves no
interference.
1
(2000) 10 SCC 500 Page 7
7
4. We shall first deal with charge under Section 498A of
the IPC. In our opinion, the trial court as well as the High
Court have rightly held that charge under Section 498A of
the IPC is proved. PW-1 Subramaniya, the father of the
deceased has stated how the deceased was ill-treated in her
matrimonial house. It appears from his evidence that the
accused constantly harassed the deceased and asked her to
bring gold sovereigns and money from her parents. On
account of his strained financial condition, he could not fulfill
those demands. He stated that at the time of marriage, a
demand of 25 gold sovereigns and a sum of Rs.50,000/- was
made. He could only give 20 gold sovereigns. He stated
that A1-Babu and the deceased lived in the house of A2-
Pappathi. He has described how A1-Babu used to threaten
and beat the deceased stating that what she had brought
was less as compared to his wealth and that she should
bring more from her parents. On several occasions, the
deceased had communicated this to him. He used to give
some money to the deceased as and when she came to his
house. Because of the persistence of the accused, aPage 8
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meeting of the Panchayat was held. The members of the
Panchayat went to the house of the accused and told them
not to threaten the deceased. However, she was again
beaten up. When the first baby was born, A2-Pappathi came
to their house and demanded a gold chain for the baby.
They accordingly gifted a gold chain and anklet to the newly
born. When the second child was born, PW-2 Nataraj,
brother of the deceased went to the house of the accused
and informed them. After 2 to 3 days, the accused came to
the hospital and again demanded gold jewellery. He then
made a gold chain and anklet for the baby and took the
deceased to the house of the accused. According to him,
A1-Babu shouted at him and asked him as to why he had
brought her. The deceased stayed there for a month and
came back to his house. They consoled her and told her that
they would pay the money as and when they can arrange for
it. Thereafter, the deceased went to her matrimonial house
with the child. When PW-2 Nataraj went to see the
deceased, she told him that A1-Babu had demanded a sum
of Rs.10,000/- to buy fertilizers. She expressed a fear that hePage 9
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would kill her if she failed to fulfill the demand. PW-1
Subramaniya then went to the matrimonial house of the
deceased and told her that he will arrange for the money at
any cost and she should bear with the situation for a while.
According to him, this talk took place just one week before
the incident in question. He has been cross-examined at
some length. In the cross-examination, he has not deviated
from the story narrated by him in the examination-in-chief.
This witness comes across as a very honest and reliable
witness. It may be stated here that he is a coolie.
Obviously, therefore, he could not have fulfilled the extraordinary demands of money and jewellery made by the
accused. His evidence is consistent with the FIR lodged by
him. There are no material omissions or contradictions in his
evidence. We, therefore, find no difficulty in placing reliance
on his evidence. PW-2 Nataraj has corroborated the
evidence of PW-1 Subramaniya in all respects.
5. It appears that while the inquest of the dead-body was
being conducted Ex-P2, a letter tied in the skirt (petticoat) of
the deceased was recovered by PW-6 Ganesan, the Revenue
Divisional Officer, who conducted the inquest. The accused
have placed heavy reliance on this letter which they
describe as a suicide note. It is contended that this note and
the poison found in the stomach and intestine of the
deceased suggest that the deceased had committed suicide.
We have carefully gone through the letter (Ex-P2). In our
opinion, Ex-P2 completely supports the prosecution case that
the deceased was harassed and ill-treated by the accused
for money and jewellery. This letter bears out the version of
the prosecution story given by PW-1 Subramaniya and PW-2
Nataraj. However, in this letter, the deceased has nowhere
expressed any desire to commit suicide. It is, therefore, not
possible to treat this letter as a suicide note. In view of the
above, we have no hesitation in concurring with the trial
court and the High Court that A1-Babu and A2-Pappathi
treated the deceased with cruelty and are guilty of offence
punishable under Section 498A of the IPC and their
conviction on that count is perfectly justified. Page 11
11
6. We must now turn to the conviction of the appellants
under Section 304 Part I of the IPC. We are of the confirmed
opinion that this charge is made out only against A1-Babu
and not against A2-Pappathi. A2-Pappathi’s involvement in
this offence could be held to be proved only if PW-3
Ponnusamy’s evidence is believed. PW-3 Ponnusamy has
been disbelieved by the trial court as well as the High Court
and, in our opinion, rightly so. This witness claimed that
when he visited the house of the accused, he heard the
accused asking the deceased as to why the sum of
Rs.10,000/- was not brought by her. He claimed that he
peeped through the window and saw A1-Babu catching hold
of the deceased and dashing her head against a pillar.
According to him, at that time, A2-Pappathi intervened and
asked A1-Babu to pour poison in her mouth. A1-Babu
accordingly brought poison. According to this witness,
further, A1-Babu gave poison to A2-Pappathi, who poured it
in the mouth of the deceased. It is at that time that he went
inside the house and questioned them. Thereupon, they
took the deceased to the hospital telling him that they would
save her life. This entire story is inherently improbable and
totally unbelievable. If this witness has seen A2-Pappathi
pouring poison in the mouth of the deceased, he should have
screamed and called people. He should have tried to
prevent A2-Pappathi from pouring poison in the mouth of the
deceased. He should have rushed to the police station
rather than waiting in the house. The exaggerated evidence
of this witness must, therefore, be kept out of consideration.
If this witness is disbelieved, A2-Pappathi cannot be said to
be involved in offence punishable under Section 304 Part I of
the IPC. In our opinion, her conviction for the said offence
must be set aside.
7. There is yet one other strong reason why we cannot
confirm the conviction of A2-Pappathi for offence punishable
under Section 304 Part I read with Section 109 of the IPC.
Though she has been convicted as aforesaid, she was
charged for offence punishable under Section 302 read with
Section 34 of the IPC. There was no charge under Section
109 of the IPC. Section 109 of the IPC by itself is anPage 13
13
independent offence though punishable in the context of
other offences. A2-Pappathi has faced trial for offence
punishable under Section 302 read with Section 34 of the IPC
i.e. for murdering the deceased by sharing common
intention with A1-Babu. She cannot therefore be convicted
for offence punishable under Section 304 Part I of the IPC
with the aid of Section 109 of the IPC in the absence of a
charge under Section 109 of the IPC. In this connection, we
may usefully refer to Wakil Yadav where the appellant
therein had faced trial for being a member of an unlawful
assembly which achieved the common object of killing the
deceased. No charge was framed for offence punishable
under Section 302 read with Section 109 of the IPC.
However, the appellant was convicted for offence punishable
under Section 302 read with Section 109 of the IPC and
sentenced to life imprisonment. This Court held that the
appellant therein having faced trial for being a member of an
unlawful assembly which achieved the common object of
killing the deceased, could in no event be substitutedly
convicted for offence under Section 302 of the IPC with thePage 14
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aid of Section 109 of the IPC. This Court observed that there
was not only a legal flaw but also a great prejudice to the
appellant therein in projecting his defence. Drawing a
parallel from this decision, we hold that A2-Pappathi could
not have been convicted for offence punishable under
Section 304 Part I of the IPC read with Section 109 of the IPC
and sentenced for the same. On this count also, A2-
Pappathi’s conviction and sentence under Section 304 Part I
read with Section 109 of the IPC will have to be set aside.
8. Now the question is whether if PW-3 Ponnusamy is
disbelieved, the entire prosecution story becomes suspect
and deserves to be disbelieved. In our opinion, even if PW-3
Ponnusamy’s evidence is obliterated, the prosecution case
can be held proved on the basis of other evidence on record.
Witnesses do exaggerate. They have a tendency to improve
upon the prosecution case. If one of the witnesses is found
to be prone to exaggeration and, hence, not reliable, the
other evidence on record, if it is cogent and reliable, can be
relied upon. The entire prosecution evidence does notPage 15
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necessarily become tainted thereby. In this connection we
may usefully refer to the observations of this Court in Sucha
Singh & Anr. v. State of Punjab2
, which read thus:
“The maxim “falsus in uno falsus in omnibus” has
no application in India and the witnesses cannot
be branded as liars. This maxim has not received
general acceptance nor has it come to occupy the
status of a rule of law. It is merely a rule of
caution. All that it amounts to is that in such
cases testimony may be disregarded, and not that
it must be disregarded. The doctrine merely
involves the question of weight of evidence which
a court may apply in a given set of circumstances,
but it is not what may be called “a mandatory rule
of evidence”. The doctrine is a dangerous one,
especially in India for if a whole body of the
testimony were to be rejected, because a witness
was evidently speaking an untruth in some aspect,
it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just
cannot help in giving embroidery to a story,
however true in the main. Therefore, it has to be
appraised in each case as to what extent the
evidence is worthy of acceptance, and merely
because in some respects the court considers the
same to be insufficient for replacing reliance on
the testimony of a witness, it does not necessarily
follow as a matter of law that it must be
disregarded in all respects as well. The evidence
has to be sifted with care. Falsity of a particular
material witness or a material particular would not
ruin it from the beginning to end. The aforesaid
dictum is not a sound rule for the reason that one
hardly comes across a witness whose evidence
2
(2003) 7 SCC 643
does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishment.”
9. We can, therefore, analyze the other evidence and
circumstances on record and see whether they support the
conviction of A1-Babu for offence punishable under Section
304 Part I of the IPC. In this connection, the medical
evidence is of great importance. PW-5 Dr. Rajabalan
conducted the post-mortem on 16/11/1998 at 5.00 p.m. ExP5 is the post-mortem certificate. The external and internal
injuries are described in the certificate as under:
“External Injuries:- Contusion over the right
occipital area close to the midline 2 cm x 3 cm.
General appearances do tally with police report.
Eyelids closed. Frothy discharge from the mouth
and nostrils present. Tongue inside the mouth.
Jaws clenched. Teath 8/7-8/7. Hands empty. No
fracture ribs. Hart 200gm congested. Chambers
empty. Hyoid bone intact. Lungs left 400gm.
Right 450 gm congested. Stomach contain 200 ml
of white coloured fluid with irritant smell. Liver
1000 gm congested. Spleen 10 gm congested.
Kidney 100 gm each contested. Intestines
distended with gas. Uterus normal. Cavity empty.
Pelvis normal.
On opening the head: Extravasation of blood
from the contused area on the right parietal area
and occipital area close to the midline. Fracture
right parietal bone. Membranes torn on the
occipital and parietal area on the right side brain.
wt. of 1000 gms pale. 200 ml of fluid blood found
on the base of the skull”.
10. PW-5 Dr. Rajabalan opined that the death was due to
shock and hemorrhage due to the head injury sustained by
the deceased which could have occurred 10 to 12 hours prior
to post-mortem. As noted above, on opening the head,
extravasation of blood from the contused area on the right
parietal area and occipital area close to the midline was
found. There was also a fracture on the right parietal bone.
The membranes were torn on the occipital and parietal area
on the right side brain and 20 ml. of blood was found on the
base of the skull. This head injury, according to PW-5 Dr.
Rajabalan, was the cause of death. The nature of head
injury belies the defence case that the deceased suffered it
due to a fall on account of consumption of poison. In our
opinion, such injury cannot be caused by a mere fall. It can
be caused only if some external force is applied. This
conclusion of ours is supported by the evidence of PW-5 Dr.
Rajabalan, who stated that the injuries were caused beforePage 18
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death and they could not be caused due to fall of the
deceased in a conscious state.
11. It is also pertinent to note that PW-5 Dr. Rajabalan
stated that the injuries sustained by the deceased could
have been caused 10 to 12 hours prior to the post-mortem.
We have already stated that the post-mortem was
conducted at 5.00 p.m. Thus, the death occurred around
6.00 a.m. The death occurred in the house where the
deceased resided with A1-Babu. Presence of the accused at
6.00 a.m. in the house is natural. Besides, it is not
contended by A1-Babu that he was not present in the house
when the incident occurred. To this fact situation, Section
106 of the Evidence Act is attracted. As to how the
deceased received injuries to her head and how she died
must be within the exclusive personal knowledge of A1-
Babu. It was for him to explain how the death occurred. He
has not given any plausible explanation for the death of the
deceased in such suspicious circumstances in the house in
which he resided with her and when he was admittedlyPage 19
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present in the house at the material time. This circumstance
must be kept in mind while dealing with this case. We are
mindful of the fact that this would not relieve the
prosecution of its burden of proving its case. But, it would
apply to cases where the prosecution has succeeded in
proving facts from which a reasonable inference can be
drawn regarding the existence of certain other facts, unless
the accused by virtue of his special knowledge regarding
such facts, has offered an explanation which might drive the
court to draw a different inference. In this case, in our
opinion, the prosecution has succeeded in proving facts from
which reasonable inference can be drawn that the death of
the deceased was homicidal and A1-Babu was responsible
for it. A1-Babu could have by virtue of his special knowledge
regarding the said facts offered an explanation from which a
different inference could have been drawn. Since he has not
done so, this circumstance adds up to other circumstances
which substantiate the prosecution case. In Tulshiram
Sahadu Suryawanshi & Anr. v. State of Maharashtra3
,
3
(2012) 10 SCC 373
while dealing with Section 106 of the Evidence Act, this
Court observed as under:
“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 to the most
probable position. The above position is
strengthened in view of Section 114 of the
Evidence Act, 1872. It empowers the court to
presume the existence of any fact which it thinks
likely to have happened. In that process, the
courts shall have regard to the common course of
natural events, human conduct, etc. in addition to
the facts of the case. In these circumstances, the
principles embodied in Section 106 of the
Evidence Act can also be utilized. Section 106
however is not intended to relieve the prosecution
of its burden to prove the guilt of the accused
beyond reasonable doubt, but it would apply to
cases where the prosecution has succeeded in
proving facts from which a reasonable inference
can be drawn regarding the existence of certain
other facts, unless the accused by virtue of his
special knowledge regarding such facts, has
offered an explanation which might drive the court
to draw a different inference.”
The above observation is attracted to this case.
12. We must now go to the FSL report (Ex-P-6). A perusal
of the same discloses that the stomach and intestine of thePage 21
21
deceased were found to contain the poisonous substance
viz. Metasystox but the liver and kidney did not contain the
said substance.
PW-5 Dr. Rajabalan has stated that if poison
had been consumed prior to the head injury, it would have
reached the liver and kidney. He has added that if poison is
administered to a person when he is in an unconscious state
there is a possibility that it would reach the stomach and
intestine. Considering the medical evidence, particularly the
evidence of PW-5 Dr. Rajabalan that the head injury was
anti-mortem and must have been inflicted prior to the
consumption of poison and considering the other
circumstances of the case, we concur with the High Court
that
A1-Babu first caused the head injury to the deceased
and when she became unconscious in order to create
evidence to suggest that the deceased committed suicide,
he administered poison to her.
It reached her stomach and
intestine but before it could reach the kidney and liver she
died. When she succumbed to the head injury, the poison
did not pass on to the liver and kidney.
The High Court has
rightly observed that this is the reason why there is no
Page 22
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evidence of any resistance being offered by the deceased
and no bruises were found on her lips.
13. The trial court has convicted A1-Babu for offence
punishable under Section 304 Part I of the IPC and not for
offence punishable under Section 302 of the IPC on the
ground that the deceased had suffered only one head injury.
The High Court has concurred with the trial court. We see no
reason to interfere with the impugned order.
14. In the circumstances, we confirm the conviction of A1-
Babu and A2-Pappathi for offence punishable under Section
498A of the IPC.
We confirm the sentence imposed on A1-
Babu for the offence under Section 498A of the IPC.
We find
from the letter dated 17/5/2013 sent by the Principal District
and Sessions Judge, Coimbatore that A2-Pappathi has
already undergone one year and four months sentence.
In
the peculiar facts of the case we direct that the sentence
already undergone by A2-Pappathi be treated as sentence
for the offence under Section 498A of the IPC.
We confirm
the conviction and sentence of A1-Babu for offence
Page 23
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punishable under Section 304 Part I of the IPC. However, we
quash and set aside the conviction and sentence of A2-
Pappathi for offence punishable under Section 304 Part I
read with Section 109 of the IPC. There is, therefore, no
question of her surrendering to the Court. As per order
passed by this Court on 8/10/2007, she is on bail. Her bail
bond shall stand discharged. As per the order of this Court
dated 8/10/2007, A1-Babu is also on bail. Since we have
confirmed his conviction and sentence, we direct that he
should surrender before the Principal Sessions Judge,
Coimbatore to serve out the remaining sentence. His bail
bond shall stand cancelled. Needless to say that A1-Babu’s
sentence for offences punishable under Sections 498A and
304 Part I of the IPC shall run concurrently.
15. The appeal is disposed of in the aforestated terms.
…..............................J.
(A.K. Patnaik)
……………………………J.Page 24
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(Ranjana Prakash Desai)
New Delhi
July 02, 2013
Page 1
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1738 OF 2007
BABU @ BALASUBRAMANIAM AND ANR. …Appellants
Versus
THE STATE OF TAMIL NADU …Respondent
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. The appellants (A1-Babu and A2-Pappathi respectively,
for convenience) were tried by the Principal Sessions Court,
Coimbatore in Sessions Case No.141 of 2000 for offences
punishable under Section 498A and Section 302 read with
Section 34 of the IPC. A1-Babu was convicted under Section
498A of the IPC and sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.500/-, in
default, to undergo further rigorous imprisonment for two
months. A1-Babu was also convicted for offence punishablePage 2
2
under Section 304 Part I of the IPC and sentenced to suffer
rigorous imprisonment for seven years for the same. A2-
Pappathi was convicted for offence punishable under Section
498A of the IPC and sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.500/-, in
default, to undergo further rigorous imprisonment for two
months. A2-Pappathi was also convicted for offence
punishable under Section 304 Part I read with Section 109 of
the IPC and sentenced to suffer rigorous imprisonment for
seven years for the same. On appeal, the Madras High Court
confirmed the conviction and sentence. Hence, this appeal,
by special leave.
2. Gist of the prosecution case needs to be stated.
A1-Babu was married to deceased-Indirani (“the
deceased”) on 11/4/1994. The couple resided in the house
of A2-Pappathi, who is the younger sister of A1-Babu. At the
time of marriage, 25 gold sovereigns were demanded by A1-
Babu and his family, but the parents of the deceased could
only give 20 gold sovereigns. After six months of marriage,Page 3
3
they demanded dowry for which Panchayat meeting was
held by the elders in the house of the deceased. The
members of the panchayat went to the house of the accused
and requested them not to threaten the deceased. After one
year, the deceased gave birth to a male child. The accused
demanded 10 gold sovereigns and cash of Rs.10,000/-.
Parents of the deceased could give only 3 gold sovereigns.
Thereafter, the couple was blessed with a daughter. This
time also, the accused demanded 10 gold sovereigns and
cash of Rs.10,000/- to purchase manure, but the parents of
the deceased could not fulfill this demand due to their
financial difficulties. A1-Babu and A2-Pappathi started
harassing the deceased. On 15/11/1998 the deceased
informed PW-2 Nataraj, her brother about the dowry demand
made by her husband and the cruelty meted out to her. The
prosecution story further goes on to say that on 16/11/1998,
PW-3 Ponnusamy, the grandfather of the deceased, visited
the house of the accused. When he reached near the house
of the accused, he heard the voice of the accused asking the
deceased as to why sum of Rs.10,000/- was not brought byPage 4
4
her. PW-3 Ponnusamy peeped through the window and saw
A1-Babu, who had caught hold of the deceased, dashing the
back of her head against a pillar. At that time, A2-Pappathi
intervened and said that the deceased should not die like
this. She asked him to pour poison in her mouth. Upon this,
A1-Babu brought poison and gave it to A2-Pappathi. A1-
Babu caught hold of the deceased and A2-Pappathi poured
the poison in the mouth of the deceased. PW-3 Ponnusamy
went inside the house and questioned them. The accused
started pacifying him and told him that they would save her
life. They asked him to remain in the house and they took
the deceased in a van to Udumalpet Government Hospital.
PW-4 Dr. Shanmugham examined the deceased and
declared her dead. He sent a report to the Udumalpet Police
Station, pursuant to which PW-11 SI Lakshmanan came to
the hospital and recorded the statement of PW-1
Subramaniya, the father of the deceased, which is treated as
FIR. On the basis of the FIR, investigation was started. After
completion of investigation, the accused came to be charged
as aforesaid. In support of its case, the prosecutionPage 5
5
examined 14 witnesses. Out of them, PW-1 Subramaniya,
PW-2 Nataraj and PW-5 Dr. Rajabalan, who conducted the
post-mortem of the deceased are crucial to the prosecution.
The accused denied the prosecution case and contended
that they were falsely implicated. Learned Sessions Judge
convicted the accused as aforesaid.
3. We have heard Mr. Ratnakar Dash, senior advocate,
appearing for the appellants and Mr. M. Yogesh Khanna,
counsel appearing for the respondent-State. Mr. Ratnakar
Dash submitted that the prosecution has failed to prove its
case beyond reasonable doubt. He submitted that learned
Sessions Judge ought to have appreciated that the evidence
on record clearly establishes that the deceased had
committed suicide. The Forensic Science Laboratory Report
(Ex-P6) is a pointer to this. It is also clear that the deceased
had consumed poison first and had suffered head injury
because of the fall sustained by her due to consumption of
poison. Counsel pointed out that the suicide note (Ex-P1)
supports the case of the accused that the deceasedPage 6
6
committed suicide. Counsel submitted that the evidence of
PW-3 Ponnusamy has rightly been rejected by the trial court
and the High Court and that has made the prosecution case
suspect. Counsel submitted that it is the accused, who took
the deceased to the hospital. The conduct of the accused
belies the prosecution case. According to the counsel, since
the prosecution has failed to prove its case beyond
reasonable doubt, the conviction of the accused deserves to
be set aside. Counsel submitted that in any case the
involvement of A2-Pappathi, the sister, who is a widow, is not
proved at all. Besides, she could not have been convicted
under Section 302 read with Section 109 of the IPC in the
absence of a charge being framed under Section 109 of the
IPC. In support of this submission, counsel relied on the
judgment of this Court in Wakil Yadav & Anr. v. State of
Bihar1
. Shri M. Yogesh Khanna, learned counsel for the
State submitted that the impugned judgment deserves no
interference.
1
(2000) 10 SCC 500 Page 7
7
4. We shall first deal with charge under Section 498A of
the IPC. In our opinion, the trial court as well as the High
Court have rightly held that charge under Section 498A of
the IPC is proved. PW-1 Subramaniya, the father of the
deceased has stated how the deceased was ill-treated in her
matrimonial house. It appears from his evidence that the
accused constantly harassed the deceased and asked her to
bring gold sovereigns and money from her parents. On
account of his strained financial condition, he could not fulfill
those demands. He stated that at the time of marriage, a
demand of 25 gold sovereigns and a sum of Rs.50,000/- was
made. He could only give 20 gold sovereigns. He stated
that A1-Babu and the deceased lived in the house of A2-
Pappathi. He has described how A1-Babu used to threaten
and beat the deceased stating that what she had brought
was less as compared to his wealth and that she should
bring more from her parents. On several occasions, the
deceased had communicated this to him. He used to give
some money to the deceased as and when she came to his
house. Because of the persistence of the accused, aPage 8
8
meeting of the Panchayat was held. The members of the
Panchayat went to the house of the accused and told them
not to threaten the deceased. However, she was again
beaten up. When the first baby was born, A2-Pappathi came
to their house and demanded a gold chain for the baby.
They accordingly gifted a gold chain and anklet to the newly
born. When the second child was born, PW-2 Nataraj,
brother of the deceased went to the house of the accused
and informed them. After 2 to 3 days, the accused came to
the hospital and again demanded gold jewellery. He then
made a gold chain and anklet for the baby and took the
deceased to the house of the accused. According to him,
A1-Babu shouted at him and asked him as to why he had
brought her. The deceased stayed there for a month and
came back to his house. They consoled her and told her that
they would pay the money as and when they can arrange for
it. Thereafter, the deceased went to her matrimonial house
with the child. When PW-2 Nataraj went to see the
deceased, she told him that A1-Babu had demanded a sum
of Rs.10,000/- to buy fertilizers. She expressed a fear that hePage 9
9
would kill her if she failed to fulfill the demand. PW-1
Subramaniya then went to the matrimonial house of the
deceased and told her that he will arrange for the money at
any cost and she should bear with the situation for a while.
According to him, this talk took place just one week before
the incident in question. He has been cross-examined at
some length. In the cross-examination, he has not deviated
from the story narrated by him in the examination-in-chief.
This witness comes across as a very honest and reliable
witness. It may be stated here that he is a coolie.
Obviously, therefore, he could not have fulfilled the extraordinary demands of money and jewellery made by the
accused. His evidence is consistent with the FIR lodged by
him. There are no material omissions or contradictions in his
evidence. We, therefore, find no difficulty in placing reliance
on his evidence. PW-2 Nataraj has corroborated the
evidence of PW-1 Subramaniya in all respects.
5. It appears that while the inquest of the dead-body was
being conducted Ex-P2, a letter tied in the skirt (petticoat) of
the deceased was recovered by PW-6 Ganesan, the Revenue
Divisional Officer, who conducted the inquest. The accused
have placed heavy reliance on this letter which they
describe as a suicide note. It is contended that this note and
the poison found in the stomach and intestine of the
deceased suggest that the deceased had committed suicide.
We have carefully gone through the letter (Ex-P2). In our
opinion, Ex-P2 completely supports the prosecution case that
the deceased was harassed and ill-treated by the accused
for money and jewellery. This letter bears out the version of
the prosecution story given by PW-1 Subramaniya and PW-2
Nataraj. However, in this letter, the deceased has nowhere
expressed any desire to commit suicide. It is, therefore, not
possible to treat this letter as a suicide note. In view of the
above, we have no hesitation in concurring with the trial
court and the High Court that A1-Babu and A2-Pappathi
treated the deceased with cruelty and are guilty of offence
punishable under Section 498A of the IPC and their
conviction on that count is perfectly justified. Page 11
11
6. We must now turn to the conviction of the appellants
under Section 304 Part I of the IPC. We are of the confirmed
opinion that this charge is made out only against A1-Babu
and not against A2-Pappathi. A2-Pappathi’s involvement in
this offence could be held to be proved only if PW-3
Ponnusamy’s evidence is believed. PW-3 Ponnusamy has
been disbelieved by the trial court as well as the High Court
and, in our opinion, rightly so. This witness claimed that
when he visited the house of the accused, he heard the
accused asking the deceased as to why the sum of
Rs.10,000/- was not brought by her. He claimed that he
peeped through the window and saw A1-Babu catching hold
of the deceased and dashing her head against a pillar.
According to him, at that time, A2-Pappathi intervened and
asked A1-Babu to pour poison in her mouth. A1-Babu
accordingly brought poison. According to this witness,
further, A1-Babu gave poison to A2-Pappathi, who poured it
in the mouth of the deceased. It is at that time that he went
inside the house and questioned them. Thereupon, they
took the deceased to the hospital telling him that they would
save her life. This entire story is inherently improbable and
totally unbelievable. If this witness has seen A2-Pappathi
pouring poison in the mouth of the deceased, he should have
screamed and called people. He should have tried to
prevent A2-Pappathi from pouring poison in the mouth of the
deceased. He should have rushed to the police station
rather than waiting in the house. The exaggerated evidence
of this witness must, therefore, be kept out of consideration.
If this witness is disbelieved, A2-Pappathi cannot be said to
be involved in offence punishable under Section 304 Part I of
the IPC. In our opinion, her conviction for the said offence
must be set aside.
7. There is yet one other strong reason why we cannot
confirm the conviction of A2-Pappathi for offence punishable
under Section 304 Part I read with Section 109 of the IPC.
Though she has been convicted as aforesaid, she was
charged for offence punishable under Section 302 read with
Section 34 of the IPC. There was no charge under Section
109 of the IPC. Section 109 of the IPC by itself is anPage 13
13
independent offence though punishable in the context of
other offences. A2-Pappathi has faced trial for offence
punishable under Section 302 read with Section 34 of the IPC
i.e. for murdering the deceased by sharing common
intention with A1-Babu. She cannot therefore be convicted
for offence punishable under Section 304 Part I of the IPC
with the aid of Section 109 of the IPC in the absence of a
charge under Section 109 of the IPC. In this connection, we
may usefully refer to Wakil Yadav where the appellant
therein had faced trial for being a member of an unlawful
assembly which achieved the common object of killing the
deceased. No charge was framed for offence punishable
under Section 302 read with Section 109 of the IPC.
However, the appellant was convicted for offence punishable
under Section 302 read with Section 109 of the IPC and
sentenced to life imprisonment. This Court held that the
appellant therein having faced trial for being a member of an
unlawful assembly which achieved the common object of
killing the deceased, could in no event be substitutedly
convicted for offence under Section 302 of the IPC with thePage 14
14
aid of Section 109 of the IPC. This Court observed that there
was not only a legal flaw but also a great prejudice to the
appellant therein in projecting his defence. Drawing a
parallel from this decision, we hold that A2-Pappathi could
not have been convicted for offence punishable under
Section 304 Part I of the IPC read with Section 109 of the IPC
and sentenced for the same. On this count also, A2-
Pappathi’s conviction and sentence under Section 304 Part I
read with Section 109 of the IPC will have to be set aside.
8. Now the question is whether if PW-3 Ponnusamy is
disbelieved, the entire prosecution story becomes suspect
and deserves to be disbelieved. In our opinion, even if PW-3
Ponnusamy’s evidence is obliterated, the prosecution case
can be held proved on the basis of other evidence on record.
Witnesses do exaggerate. They have a tendency to improve
upon the prosecution case. If one of the witnesses is found
to be prone to exaggeration and, hence, not reliable, the
other evidence on record, if it is cogent and reliable, can be
relied upon. The entire prosecution evidence does notPage 15
15
necessarily become tainted thereby. In this connection we
may usefully refer to the observations of this Court in Sucha
Singh & Anr. v. State of Punjab2
, which read thus:
“The maxim “falsus in uno falsus in omnibus” has
no application in India and the witnesses cannot
be branded as liars. This maxim has not received
general acceptance nor has it come to occupy the
status of a rule of law. It is merely a rule of
caution. All that it amounts to is that in such
cases testimony may be disregarded, and not that
it must be disregarded. The doctrine merely
involves the question of weight of evidence which
a court may apply in a given set of circumstances,
but it is not what may be called “a mandatory rule
of evidence”. The doctrine is a dangerous one,
especially in India for if a whole body of the
testimony were to be rejected, because a witness
was evidently speaking an untruth in some aspect,
it is to be feared that administration of criminal
justice would come to a dead stop. Witnesses just
cannot help in giving embroidery to a story,
however true in the main. Therefore, it has to be
appraised in each case as to what extent the
evidence is worthy of acceptance, and merely
because in some respects the court considers the
same to be insufficient for replacing reliance on
the testimony of a witness, it does not necessarily
follow as a matter of law that it must be
disregarded in all respects as well. The evidence
has to be sifted with care. Falsity of a particular
material witness or a material particular would not
ruin it from the beginning to end. The aforesaid
dictum is not a sound rule for the reason that one
hardly comes across a witness whose evidence
2
(2003) 7 SCC 643
does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishment.”
9. We can, therefore, analyze the other evidence and
circumstances on record and see whether they support the
conviction of A1-Babu for offence punishable under Section
304 Part I of the IPC. In this connection, the medical
evidence is of great importance. PW-5 Dr. Rajabalan
conducted the post-mortem on 16/11/1998 at 5.00 p.m. ExP5 is the post-mortem certificate. The external and internal
injuries are described in the certificate as under:
“External Injuries:- Contusion over the right
occipital area close to the midline 2 cm x 3 cm.
General appearances do tally with police report.
Eyelids closed. Frothy discharge from the mouth
and nostrils present. Tongue inside the mouth.
Jaws clenched. Teath 8/7-8/7. Hands empty. No
fracture ribs. Hart 200gm congested. Chambers
empty. Hyoid bone intact. Lungs left 400gm.
Right 450 gm congested. Stomach contain 200 ml
of white coloured fluid with irritant smell. Liver
1000 gm congested. Spleen 10 gm congested.
Kidney 100 gm each contested. Intestines
distended with gas. Uterus normal. Cavity empty.
Pelvis normal.
On opening the head: Extravasation of blood
from the contused area on the right parietal area
and occipital area close to the midline. Fracture
right parietal bone. Membranes torn on the
occipital and parietal area on the right side brain.
wt. of 1000 gms pale. 200 ml of fluid blood found
on the base of the skull”.
10. PW-5 Dr. Rajabalan opined that the death was due to
shock and hemorrhage due to the head injury sustained by
the deceased which could have occurred 10 to 12 hours prior
to post-mortem. As noted above, on opening the head,
extravasation of blood from the contused area on the right
parietal area and occipital area close to the midline was
found. There was also a fracture on the right parietal bone.
The membranes were torn on the occipital and parietal area
on the right side brain and 20 ml. of blood was found on the
base of the skull. This head injury, according to PW-5 Dr.
Rajabalan, was the cause of death. The nature of head
injury belies the defence case that the deceased suffered it
due to a fall on account of consumption of poison. In our
opinion, such injury cannot be caused by a mere fall. It can
be caused only if some external force is applied. This
conclusion of ours is supported by the evidence of PW-5 Dr.
Rajabalan, who stated that the injuries were caused beforePage 18
18
death and they could not be caused due to fall of the
deceased in a conscious state.
11. It is also pertinent to note that PW-5 Dr. Rajabalan
stated that the injuries sustained by the deceased could
have been caused 10 to 12 hours prior to the post-mortem.
We have already stated that the post-mortem was
conducted at 5.00 p.m. Thus, the death occurred around
6.00 a.m. The death occurred in the house where the
deceased resided with A1-Babu. Presence of the accused at
6.00 a.m. in the house is natural. Besides, it is not
contended by A1-Babu that he was not present in the house
when the incident occurred. To this fact situation, Section
106 of the Evidence Act is attracted. As to how the
deceased received injuries to her head and how she died
must be within the exclusive personal knowledge of A1-
Babu. It was for him to explain how the death occurred. He
has not given any plausible explanation for the death of the
deceased in such suspicious circumstances in the house in
which he resided with her and when he was admittedlyPage 19
19
present in the house at the material time. This circumstance
must be kept in mind while dealing with this case. We are
mindful of the fact that this would not relieve the
prosecution of its burden of proving its case. But, it would
apply to cases where the prosecution has succeeded in
proving facts from which a reasonable inference can be
drawn regarding the existence of certain other facts, unless
the accused by virtue of his special knowledge regarding
such facts, has offered an explanation which might drive the
court to draw a different inference. In this case, in our
opinion, the prosecution has succeeded in proving facts from
which reasonable inference can be drawn that the death of
the deceased was homicidal and A1-Babu was responsible
for it. A1-Babu could have by virtue of his special knowledge
regarding the said facts offered an explanation from which a
different inference could have been drawn. Since he has not
done so, this circumstance adds up to other circumstances
which substantiate the prosecution case. In Tulshiram
Sahadu Suryawanshi & Anr. v. State of Maharashtra3
,
3
(2012) 10 SCC 373
while dealing with Section 106 of the Evidence Act, this
Court observed as under:
“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 to the most
probable position. The above position is
strengthened in view of Section 114 of the
Evidence Act, 1872. It empowers the court to
presume the existence of any fact which it thinks
likely to have happened. In that process, the
courts shall have regard to the common course of
natural events, human conduct, etc. in addition to
the facts of the case. In these circumstances, the
principles embodied in Section 106 of the
Evidence Act can also be utilized. Section 106
however is not intended to relieve the prosecution
of its burden to prove the guilt of the accused
beyond reasonable doubt, but it would apply to
cases where the prosecution has succeeded in
proving facts from which a reasonable inference
can be drawn regarding the existence of certain
other facts, unless the accused by virtue of his
special knowledge regarding such facts, has
offered an explanation which might drive the court
to draw a different inference.”
The above observation is attracted to this case.
12. We must now go to the FSL report (Ex-P-6). A perusal
of the same discloses that the stomach and intestine of thePage 21
21
deceased were found to contain the poisonous substance
viz. Metasystox but the liver and kidney did not contain the
said substance.
PW-5 Dr. Rajabalan has stated that if poison
had been consumed prior to the head injury, it would have
reached the liver and kidney. He has added that if poison is
administered to a person when he is in an unconscious state
there is a possibility that it would reach the stomach and
intestine. Considering the medical evidence, particularly the
evidence of PW-5 Dr. Rajabalan that the head injury was
anti-mortem and must have been inflicted prior to the
consumption of poison and considering the other
circumstances of the case, we concur with the High Court
that
A1-Babu first caused the head injury to the deceased
and when she became unconscious in order to create
evidence to suggest that the deceased committed suicide,
he administered poison to her.
It reached her stomach and
intestine but before it could reach the kidney and liver she
died. When she succumbed to the head injury, the poison
did not pass on to the liver and kidney.
The High Court has
rightly observed that this is the reason why there is no
Page 22
22
evidence of any resistance being offered by the deceased
and no bruises were found on her lips.
13. The trial court has convicted A1-Babu for offence
punishable under Section 304 Part I of the IPC and not for
offence punishable under Section 302 of the IPC on the
ground that the deceased had suffered only one head injury.
The High Court has concurred with the trial court. We see no
reason to interfere with the impugned order.
14. In the circumstances, we confirm the conviction of A1-
Babu and A2-Pappathi for offence punishable under Section
498A of the IPC.
We confirm the sentence imposed on A1-
Babu for the offence under Section 498A of the IPC.
We find
from the letter dated 17/5/2013 sent by the Principal District
and Sessions Judge, Coimbatore that A2-Pappathi has
already undergone one year and four months sentence.
In
the peculiar facts of the case we direct that the sentence
already undergone by A2-Pappathi be treated as sentence
for the offence under Section 498A of the IPC.
We confirm
the conviction and sentence of A1-Babu for offence
Page 23
23
punishable under Section 304 Part I of the IPC. However, we
quash and set aside the conviction and sentence of A2-
Pappathi for offence punishable under Section 304 Part I
read with Section 109 of the IPC. There is, therefore, no
question of her surrendering to the Court. As per order
passed by this Court on 8/10/2007, she is on bail. Her bail
bond shall stand discharged. As per the order of this Court
dated 8/10/2007, A1-Babu is also on bail. Since we have
confirmed his conviction and sentence, we direct that he
should surrender before the Principal Sessions Judge,
Coimbatore to serve out the remaining sentence. His bail
bond shall stand cancelled. Needless to say that A1-Babu’s
sentence for offences punishable under Sections 498A and
304 Part I of the IPC shall run concurrently.
15. The appeal is disposed of in the aforestated terms.
…..............................J.
(A.K. Patnaik)
……………………………J.Page 24
24
(Ranjana Prakash Desai)
New Delhi
July 02, 2013
