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PETITIONER: G. SELVARAJ, M. SUSEELA ETC.

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       16/09/1997

BENCH: M. M. PUNCHHI, S. P. KURDUKAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: M. Suseela etc. V. State of Tamil Nadu Present:               Hon’ble Mr. Justice M.M. Punchhi               Hon’ble Mr. Justice S.P. Kurdukar               Hon’ble Mr. Justice M. Jagannadha Rao S. Muralidhar, Adv. for the appellants V.G. Pragasam, Adv. for the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: M. Suseela V. State of Tamil Nadu                             WITH                CRIMINAL APPEAL NO 502 OF 1994                       J U D G M E N T S.P. KURDUKAR, J.      For committing the murder of Seethalakshmi, her husband Selvaraj (A-1) and Suseela (A-2) - the wife of elder brother of A-1  were out  up for  trial for  the offences punishable under Section  302/34 and 201 of the Indian Penal Code.  The Sessions  Court.   West  Thanjavur  at  Thanjavur  vide  its judgment dated  March 23,  1987 convicted  both the  accused under Section  302/34 and 201 IPC and sentenced both of them to  suffer   life  imprisonment   and  RI  for  three  years respectively.  Two separate appeals were filed by A-1 and A- 2 in  the High Court of Judicature at Madras and on scrutiny of the  oral and  documentary evidence  on record,  the High Court by  its common  judgment dated July 22, 1993 dismissed the same.  It is against this judgment of the High Court, A- 1 and  A-2 by Special Leave have filed two separate Criminal Appeals Nos.  502 of  1994 and  501 of  1994 respectively to this Court.   Since both these appeals arise out of a common judgment, they are being disposed of by this judgment. 2.   A  marriage   between  A-1   and  Seethalakshmi  (since deceased) which  took place  on or  about October,  1984 was proved to be unhappy within a short time.  The elder brother of A-12,  A-2 and  her two  minor children and Seethalakshmi were staying  in one  room tenement  at village Ariyathidal,

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Taluka  Kumbakonam  in  Thanjavur  district.    A-1  at  the relevant time  was doing the work of rickshaw puller and was earning his  livelihood.   It was alleged by the prosecution that within  ten days  of marriage,  A-1 sold  away the gold ring presented  to him  at the  time  of  wedding  and  soon thereafter, he also disposed of all jewellery items given to Seethalakshmi  during  her  marriage.    On  query  made  by Seethalakshmi about her jewellery items, A-1 got annoyed and beat her  with the  belt.  It appears that on a complaint by Seethalakshmi to  the  Gram  Panchayat  in  respect  of  ill treatment meted  out to her, a meeting was held ad a fine of Rs.15/- was  impose on A-1, Seethalakshmi also suspected the conduct of A-1 as it was rumoured that he was having illicit relations with  A-2.   Being fed  up with  this  atmosphere, Seethalakshmi came  to her parents house.  Vijayalakshmi (PW 1) and Thyagarajan (PW 3), parents of Seethalakshmi consoled her and sent her back to the house of A-1 with an advice not to get  depressed by  such incidents and things would be set right in  due  course.    It  was  further  alleged  by  the prosecution that  a week  prior to  the  date  of  incident, Seethalakshmi along with A-1, his brother Subramaniam and A- 2 came to the house of parents of Seethalakshmi to celebrate a local  festival called  "Thali"(the sacred  thread tied on the brides neck at the time of marriage).  At that time, A-1 insisted that  his mother-in-law  should give  money on this occasion.   Due to  financial constraints, Vijayalakshmi (PW 1) could  not meet  the said  demand which  according to the prosecution widened  the strained  relations further between the  couple.    Seethalakshmi  thereafter  returned  to  her matrimonial house  but within  a week her parents received a message that  A-1 was  always quarreling  with her  for  not satisfying his demand.  Seethalakshmi during her stay at her parents house  complained to  them that A-1 was ill treating her for  money and  causing a lot of harassment to her.  The quarrels between  Seethalakshmi, A-1  and A-2  were known to the persons residing in the adjacent houses.  Shanmugham (PW 3) and  his wife  Pushpavalli (PW 4) were the neighbours and were residing on the backside of the house of A-1. 3.   Prosecution then  alleged that  on 11th April. 1985, at about 11.00  a.m., A-1  and A-2  picked up  a  quarrel  with Seethalakshmi.  Shanmugham (PW 3) went and inquired with A-1 and A-2 as to what the matter was and thereafter he left for Kumbakonam.  Pushpavalli (PW 4), a house wife also heard the quarrels between  Seethalakshmi, A-1 and A-2, At about 12.00 noon, Krishnamurthi  (PW 6),  a close  relative came to meet Seethalakshmi and  on inquiry  with the accused, he was told that she  had gone  to Kumbakonam.  Soon thereafter, A-1 and A-2 left on a bicycle.  Shanmugham (PW 3) at about 1.30 p.m. returned to  his house  and at  that time, A-1 told him that Seethalakshmi committed  a suicide  and her body was hanging to the  ceiling.  A-1 requested to help him in lowering down the dead body but he refused to do so.  On 11th April, 1985, at  about  8.00  p.m.,  A-1  lodged  the  FIR  stating  that Seethalakshmi  had   committed  a  suicide.    A  crime  was accordingly registered  under Section  174 of  the  Criminal Procedure Code.  On 12th April, 1985 at about 4.00 a.m., the First Information Report was received from Sub Inspector Mr. Rosario (PW  10), who  then went to the spot immediately and held  the   inquest  on   the  dead   body.  He  seized  the incriminating articles  which were  found in  the room.  The dead body  was sent to the Govt.  Hospital at Kumbakonam for post-mortem.   After completing  the investigation, both the accused  came   to  be   charge  sheeted  for  the  offences punishable under  Sections 302/34  and 201  IPC.   Both  the accused were arrested on 28th April, 1985 at Swami Malai bus

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stand. 4.   Both  the   accused  denied  the  allegations  levelled against them and according to them, they were not present at the time  of alleged incident.  According to them, when they returned home  late in the afternoon, they saw the dead body of Seethalakshmi  hanging and  therefore, A-1  went  to  the police Station  and lodged  the  First  Information  Report. They have  been falsely implicated in the present crime and, therefore, they be acquitted. 5.   The   prosecution   case   entirely   rested   on   the circumstantial evidence  and in  order to prove the same, it examined s  many as  15 witnesses  of whom Sunder Raj (PW 5) turned hostile.   Prosecution  also produced and relied upon the post  mortem examination  report and  the piece of cloth and a  nylon saree  (MOs 1  and 2)  which were  seized under seizure panchanama from the place of incident. 6.   A serious  challenge to the finding of the courts below that seethalakshmi  died a  homicidal death  was made before us.   According to  the learned  counsel for the appellants, Seethalakshmi had committed suicide and the medical evidence eon record also supports the theory of suicide propounded by the accused.  We will deal with this issue little later. 7.   Coming to  the first circumstance, namely, the marriage between   Seethalakshmi and A-1 was a totally unhappy affair is  proved  by  Vijaylakshmi  (PW  1),  Tyagarajan  (PW  2), Shanmugham (PW 3) and Pushpavalli (PW 4).  Vijayalakshmi (PW 1) and  Thyagarajan (PW  2) are the parents of Seethalakshmi who had  stated that  within ten  days of the marriage.  A-1 had  started   disposing   of   the   ornaments   given   to Seethalakshmi and  on resistance  by her,  A-1 used  to beat her.   They further  deposed that  at the  time  of  "Thali" ceremony,  A-1   demanded  money   but  due   to   financial constraints, they  could not meet the said demand.  Whenever Seethalakshmi used  to come  to their  house,  she  used  to narrate various  painful incidents including beating and use of abusive language by A-1, For no rhyme or reason, A-1 used to pick  up quarrels  with Seethalakshmi.   This evidence of Vijayalakshmi (PW  1) and Thyagarajan (PW 2) was accepted by the  courts   below  and   despite  strenuous  efforts,  Mr. Murlidhar, learned counsel was unable to persuade us to hold contract.   The evidence  of the  parents stood corroborated from the testimony of two neighbours, namely, Shanmugham (PW 3) and  Pushpavalli (PW  4).  They testified that there used to be  often quarrels  between Seethalakshmi on one hand and A-1 A-2  on the  other.  After going through the evidence of these witnesses,  we have no manner of doubt that there used to be  quarrels in  the house  of A-1  and Seethalakshmi was required to  face the  ill treatment meted out to her by the appellants. 8.   The next  circumstance relied  upon by  the prosecution was that  A-1 had  every opportunity  to commit the crime in question as  she was  staying in the house of A-1 along with A-2, her  husband and  two children.   On the fateful day of occurrence, viz.,  11th of April, 1985, at about 11.00 a.m., Shanmugham (PW  3) and Pushpavalli (PW 4) heard the noise of quarrel from  the house of A-1.  Shanmugham (PW 3) when went to inquire  from the inmates of the house of A-1, he was not given proper  reply and  it is his positive evidence that at that time,  A-1 and A-2 on the one hand and Seethalakshmi on the other  were quarreling.     He then left for Kumbakonam. Pushpavalli (PW 4) who was in her house came out and saw the quarrels between  Seethalakshmi on  one hand and A-1 and A-2 on the other.  She then returned to her house.  At about the same time, Krishnamurthi (PW 6) who happened to be the close relative of  Seethalakshmi came  to  the  house  of  A-1  to

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enquire about  her and  he was  told that  she had  left for Kumbakonam.  Sometime thereafter, Pushpavalli (PW 4) saw A-1 and A-2 going on a bicycle.  On careful consideration of the evidence of these witnesses, the courts below found the same as trustworthy  and accordingly reached a conclusion that on 11th April,  1985 at  about noon  time, quarrel was going on between Seethalakshmi  on one  hand and  A-1 and  A-2 on the other and  soon thereafter both the accused left on bicycle. We have  perused the  evidence of these witnesses and we see no reason to upset the said finding. 9.   The next  vital circumstance  is that Shanmugham (PW 3) and Pushpavalli  (PW 4)  saw Seethalakshmi  alive  at  about 11.00 or  11.30 a.m. in the company of A-1 and A-2 when they were quarreling.   Within  two hours  when Shanmugham (PW 3) returned from  Kumbakonam at  about 1.30  p.m., A-1 told him that  Seethalakshmi   has  committed  a  suicide.    It  is, therefore, clear  that Seethalakshmi died during this period of two hours.  Shanmugham (PW 3) then testified that A-1 met him near  his house  and he  requested him  to help  him  in lowering down  the dead  body but,  however, he  refused  to oblige him. 10.  Now what  we are  required to consider is whether death of Seethalakshmi was homicidal or suicidal?  In this behalf, a very  crucial circumstance pressed into service and proved by the  prosecution was  hat Seethalakshmi was seen alive in the company  of A-1  and A-2  and within  two hours, she was found dead.   A-1 and A-2 therefore, were expected to give a reasonable explanation  as to  how Seethalakshmi died.  They however pleaded  alibi and  feigned  ignorance  as  to  what happened in the afternoon.  The only explanation given by A- 1 and  A-2 was  that when they came home;  they saw the dead body of  Seethalakshmi hanging to the rafter of the ceiling. A very  crucial point that needs to be considered is whether the plea of suicide could fit in the facts and circumstances of this  case.   the height  of the roof and rafter from the floor as  12’. A  kerosense tin was seized from the place of occurrence but  the height  of it  could not be more than 2. Having regard  to these  circumstances, it  appears to us an almost a  difficult task  for Seethalakshmi  to tie  a nylon saree to the rafter in the ceiling at such a height and then hang herself.   In  view of these circumstances, we rule out the probability of Seethalakshmi committing a suicide. 11.  The next  circumstance relied  upon by  the prosecution was the  disappearance of  A-1 and  A-2 who were arrested on 28th April,  1985 at  the bus  stand.   Although,  both  the accused had  denied that  they were not in the town but this denial has no meaning and was rightly rejected by the courts below. 12.  The next  circumstance relied  upon by  the prosecution was the  medical evidence  of Dr.  Swaranlata (PW 9) and the post mortem  examination report  to establish  that death of Seethalakshmi was  a homicidal.   Dr. Swaranlata (PW 9) held the  post   mortem      examination  on  the  dead  body  of Seethalakshmi and  report is  Ex.P-4.  She testified that on both sides  of the  front region  of the  neck, several nail scratch marks  were seen.   A contusion of about 4’ x 3’ was seen below  the jaw  which was  on the hyoid bone.  The said injury, however, did not extend sideward and backwards.  The hyoid bone  was fractured.  On dissection, the extravasation of the  blood was found in many parts of the tissues beneath the skin.   The  right chamber  of the heart was filled with blood whereas  the left  chamber was  empty.  The lungs were clotted with  blood.   The stomach  was found  empty and the small intestine  were filled with gas.  The liver and spleen were clotted  with blood.   The  cause of death was that the

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deceased was  strangulated and  died due  to  the  resultant suffocation of  breath.   The nail scratch marks on the neck and  the   fracture  of   the  hyoid   bone  were   due   to strangulation.   The doctor then opined that indications for suffocation were  seen.   There was swelling of the face and the blood  vessels on  the neck.   Frothing  blood was  seen coming out from mouth and nose.  She then opined:      "When a  person hangs herself while      alive there  will marks on the neck      region to  indicate  this.    Those      marks  were  not  present  in  this      case.   The swelling did not extend      to the  rear of the neck.  If it is      a death  by suffocation,  the  left      chamber of  the hear  will be empty      and the  right chamber will be full      of blood.   If  it is  death due to      suffocation   by    hanging,    all      chambers  of   the  heart  will  be      empty.   For the  above reasons, it      cannot be  said that this is a case      of death by hanging".      Dr. Swaranlata (PW 9) admitted during cross-examination that saliva  was not dripping from the mouth.  Mr. Murlidhar while disputing the medical evidence drow our attention to a Treatise lyons  Medical Jurisprudence 10th Edition page 353. He heavily  relied upon  the passage at page 353 which reads thus:-      "Marks  of  saliva  trickling  down      from one  or  other  angle  of  the      mouth indicate  that the  body  was      hanged during  life;  their absence      does not  show that death had taken      place before the body was hanged."      We have gone through the evidence of Dr. Swaranlata (PW 9) and  the post  mortem report  (Ex.P-4) and  we find  that there are  certain loopholes  but one  thing is certain that deceased and  nail marks  around the  neck  an  in  case  of suicide;   there could  not have been any possibility of any such nail  marks.  We are, therefore, of the considered view that the  theory of  suicide set up by the appellants was an afterthought.  We, therefore, hold that Seethalakshmi died a homicidal death. 13.  Now  the   important  question   that  falls   for  our determination is  as to  whether on  the basis  of the above circumstances and  the material  on record, could it be said beyond  reasonable  doubt  that  both  the  appellants  were responsible for  causing the death of Seethalakshmi.  As far as the  complicity of A-2 is concerned, the only evidence on record is  that a  quarrel was  going on in the house of A-1 between him  and A-2  on one  had and  Seethalakshmi on  the other.  Neither Shanmugham (PW 3) nor Pushpavaili (PW 4) had stated that they inquired from A-2 as to what was the matter and why  the quarrel  was going on.  All that their evidence indicated was  that they heard the noise of quarrel assuming that A-2 was in the house that by itself would not lead to a conclusion that  she had also participated in committing the crime.   The only  circumstance used  by  the  courts  below against A-2  was that  A-1 was having illicit relations with A-2 and  it was  because of this A-2 had participated in the said crime.  Except the bare words, in the nature of hearsay evidence  of  Vijayalakshmi  (PW  1),  Thyagarajan  (PW  2), Shanmugham (PW 3) and Pushpavalli (PW 4), there was no other reliable evidence  on record.   Even  these witnesses stated that they  overhead about  the illicit  relations for  which

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there  might  not  be  any  foundation.    The  evidence  of Vijayalakshmi (PW  1), Thyagarajan (PW 2), Shanmugham (PW 3) and Pushpavalli (PW 4) also did not indicate that A-2 had at any time  caused ill treatment for money from the parents of Seethalakshmi.   In our considered view, the prosecution has failed to  prove beyond reasonable doubt that A-2 has shared a common  intention to  commit the  murder of  Seethalakshmi and/or cause  disappearance of  the evidence  to screen away the offender.   It  is in  these circumstances,  we give the benefit of  doubt to  A-2 and acquit her of all the charges. On  careful   consideration  of  the  oral  and  documentary evidence on  record, we  are of the considered view that the order on  conviction  and  sentence  of  G.  Selvaraj  (A-1) suffers from  no  infirmity  and  therefore,  calls  for  no interference. 14.  For the foregoing conclusions, we allow Criminal Appeal No. 501  of 1994  filed by  M. Suseela (A-2).  The orders of conviction and  sentence passed  against  her  by  both  the courts below  are quashed and set aside and she is acquitted of all  the charges.   The bail bonds of M. Suseela (A-2) to stand cancelled.   Criminal  Appeal No. 502 of 1994 filed by G. Selvaraj (A-1) is dismissed.