REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 774 OF 2006

SUBRAMANIAM      … APPELLANT

Versus

STATE OF TAMIL NADU & ANR.    … RESPONDENTS

J U D G M E N T

S.B. SINHA, J.

1. Appellant got married with Baby alias Sokkayyal (“the deceased”) in  

the year 1996 at village Thallakuttaipudur.  After the marriage, they were  

living  at  Village  Ennamangalam.   The  deceased  was  found  dead  in  her  

matrimonial home on 26.5.1999 at about 11:00 p.m.  On the request of the  

appellant, Chinnaraj (P.W. 3) went to the village Thallakuttaipudur, which is  

said to be situated at a distance of 18 miles from village Ennamangalam, to  

inform the parents of the deceased.  They arrived at about 9:00 a.m. in the  

next morning.  

The First Information Report (for short, “FIR”) was lodged in regard  

to the aforementioned incident at about 11:00 a.m. in Vellithiruppur police  

station.  The FIR is based on a written report wherein it was alleged that the  

deceased was subjected  to cruelty  and/or  harassment  at  the hands of  her  

husband and in-laws as sufficient dowry had not been given in her marriage.  

It was furthermore alleged that as the demand of dowry could not be met, a  

blank  promissory  note  was  executed  by  him  on  affixation  of  a  revenue  

stamp.  On the basis of the said information, FIR was lodged against the  

accused for commission of offences punishable under Sections 498A and  

302 of the Indian Penal Code (for short, “the IPC”) as also under Section 4  

of the Dowry Prohibition Act.   

2. Before the learned Sessions Judge, fourteen witnesses were examined  

by the prosecution in support of its case.  P.W.1 – Muthusamy and P.W. 2 –  

Easwari are the parents of the deceased; P.W.3 - Chinnaraj had been residing  

close to the house of the appellant.  He knew the appellant as well as the  

deceased; P.W.4 - Sakthivel and P.W. 5 - Senniappan were examined by the  

prosecution  to  prove  that  when  the  deceased  had  been  staying  with  her  

parents about three months prior to the date of occurrence, a compromise  

was allegedly entered into in the house of P.W. 1 for the purpose of bringing  

her  back to  her  matrimonial  home.  P.W. 6  – Thiru  Karunakaran is  the  

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Village  Administrative  Officer  who  witnessed  preparation  of  the  

Observation Mahazar and the recovery of the material objects M.Os.1 and 2.  

P.W.  7  –  Charles  Mohan  is  a  photographer,  who  had  taken  

photographs  of  the  scene  of  occurrence.  P.W.8  –  Anbazhagan  is  Head  

Constable in Vellithiruppur Police Station.   P.W.9 – Ganesan is Grade II  

Constable in Vellithiruppur Police Station.  P.W. 10 – Dr. Ranjini who did  

post-mortem on the dead body; P.W. 11 – Sivakumar is a Sub-Inspector of  

Police; P.W.12 – Srinivasan conducted inquest on the dead body; P.W. 13 –  

Manoharan is  Superintendent of Police in the Madurai Civil  Supply CID  

Section.   P.W.  11  and P.W 13 are  the  Investigating  Officer.   P.W.14  –  

Muthusamy  is  Deputy  Superintendent  of  Police  who  later  succeeded  

P.W.13.   

3. The learned Sessions Judge by a judgment and order dated 14.11.2000  

recorded a judgment of acquittal in favour of appellant.  The State preferred  

an  appeal  thereagainst.   By  reason  of  the  impugned  judgment  dated  

15.12.2005, the High Court while affirming the view of the trial court with  

regard to the order of acquittal  of appellant of the charges under Section  

498A of the  IPC and Section 4 of  the Dowry Prohibition Act,  however,  

recorded a judgment of conviction and sentence against him under Section  

302 of the IPC opining that its findings were unreasonable.  

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4. Mr.  Dhruv  Mehta,  learned  counsel  appearing  on  behalf  of  the  

appellant for assailing the judgment of the High Court would contend:

i. The cause of death of the deceased cannot be said to have been  

caused by smothering.

ii. The  circumstantial  evidence  whereupon  reliance  has  been  

placed  by  the  High  Court  cannot  be  said  to  have  formed  a  

complete link in the chain to arrive at the guilt of the appellant.

iii. The police having already arrived at the Village Ennamangalam  

early in the morning had been admitted by P.W. 2 and P.W.3,  

no  reliance  can  be  placed  on the  FIR which  was  lodged by  

P.W.1 at 11:00 a.m. in the police station.

5. Mr.  Kanagaraj,  learned  Senior  Counsel  appearing  on  behalf  of  the  

respondent, on the other hand, supported the judgment of the High Court  

urging that the fact that the deceased was a young woman and pregnant of  

seven  months  and  suffered  an  unnatural  death  being  not  in  dispute,  the  

circumstances found favour with the High Court, namely, (1) they had been  

living together and last seen together, (2) it was for the appellant to give a  

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reasonable explanation as to how she died, and (3) the plea of alibi taken by  

appellant  having  not  been  proved,  no  interference  with  the  impugned  

judgment is warranted.  

6. Cause of death as stated in the post-mortem report is as under:

“Appearances found at the Post-Mortem:

Moderately  nourished,  female  lies  on  the  back,  arms  close  to  sides,  lower  limbs  extended  hair  black, skin pals, eyes closed, lips swollen, forthy  fluid  discharge  of  blood  from  mouth  and  nose.  Abdomen distended.   

EXTERNAL INJURIES - NIL  

INTERNAL  

1. ………

2. ………

.......….

12. Kidneys both 160 gms. Normal

………

16. Head – Normal  

…….

18. Brain – Normal, 1200 gms.  

Viscera preserved for Chemical analysis.

OPINION:- The  deceased  would  appear  to  have  died  of  28  to  36  hrs.  prior  to  autopsy.   Final  opinion pending on Chemical Analysis.

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Forensic  Report: RT.  2756/99  to  H.  928/99  DT.  30.06.99

Viscera: 1. Stomach and its contents

2. Intestine and its contents

3. Liver

4. Kidneys

5. Lungs

6. Preservative

The  above  six  articles  were  examined  but  poison was not detected in any of them.

Opinion as to cause of death:

(a) Reserved pending report of Viscera

(b) The deceased would appear to have died of  28 to 36 hrs. his prior to autopsy.

FINAL OPINION:-

The death is due to Asphyxia.  May be due  to smothering.”

The post-mortem report was proved by Dr. Ranjini (P.W. 10).  In her  

evidence apart from proving the post-mortem report, she stated:

“While a pillow like M.O. 2 were to be pressed on  the  face  of  a  sleeping  person  there  will  be  opportunity  for  the  swelling  lips  and difficult  in  breathing which would result in the emproyo being  affect.  Further the Lungs will also get affected and  blood  might  ooze  out  through  the  mouth  and  nose.”

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However,  she  in  her  cross  examination  admitted  that  if  death  was  

caused by asphyxia the eyes would be open and tongue would get protruded  

and it was likely that the right side of the heart would be full of blood and  

the left side of the heart would be empty.  It was furthermore accepted that at  

the time of death on account of asphyxia, tardien sport should be found in  

the eyes and further hypacksia should be found, i.e., the oxygen in the blood  

pertaining to the atoms would be very much less.  The face and head would  

also be found distended.  It was furthermore stated that:

“Further there should be mucous in the mouth and  throat.  Further generally at the time of asphyxia  there  should  be  alveonian  in  the  lungs  and  also  idima  polute  should  be  found.   Further  there  should be camerine with kolappan with intersenian  espeomia.  But the aforesaid were not found in the  dead body of the deceased in the absence of the  aforesaid symptoms there was no opportunity for  the deceased to die.”

7. Both the learned counsel  had strongly relied upon Modi’s  Medical  

Jurisprudence and Toxicology, 23rd  Edition (for short, “Modi”) to support  

their respective cases as to whether in view of absence of some symptoms as  

accepted by the autopsy surgeon, death could be caused by asphyxia.  We  

may for the aforementioned purpose notice some passages from Modi.  

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8. The learned author defines application of the term ‘suffocation’ to that  

form of death that results from the exclusion of air from the lungs, by means  

other  than  that  of  the  compression  of  the  neck.  One  of  the  types  of  

‘suffocation’ is smothering or closure of the mouth and the nostrils.  With  

regard to smothering or closure of the mouth and nostrils, it was stated:

“Infants are often accidentally smothered by being  overlaid  by  their  mothers  when  they  are  drunk.  This is more common among the lower classes of  women in England.  In India, such cases are rare,  as infants are generally not allowed to sleep in the  same  bed  with  their  mothers,  but  are  placed  in  separate  cradles.   However,  they  are  sometimes  smothered  by  inexperienced  mothers  who  press  them too closely to the breast when suckling.  A  common  method  of  killing  infants,  children  and  weak adults is to close the mouth and the nostrils  by means of the hand, bedclothes, soft pillows or  mud.  

Cases  have  been  recorded  of  adults  being  accidentally  smothered by plaster  of  paris  at  the  time of taking a cast or mould, or by falling face  downwards  into  vomited  matter,  flour,  cement,  ashes,  sand  or  mud,  especially  when  drunk  or  during an epileptic fit.

Plastic  bag  suffocation  has  been  reported  from various countries.  Deaths have occurred in  course  of  autoerotic  misadventures  by  use  of  plastic bag placed over the head.  Some addicts use  plastic bags in a similar manner to sniff or inhale  narcotic  vapours  or  anaesthetics.   Chemical  analysis is essential in all the cases of plastic bag  asphyxia occurring in teenagers; for otherwise the  proper  diagnosis  of  poisoning  by  inhalation  of  

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narcotic  vapours  may  be  missed.   A  thorough  search  of  the  scene  for  the  solvents  (acetone,  benzene,  toluene,  napththa,  carbon  tetrachloride)  should also be made and the relatives questioned.”

It  was  furthermore  stated  that  choking  or  obstruction  of  the  air-

passages from within is mostly accidental.  With regard to the post-mortem  

appearance, it is stated:

“Post-mortem  appearances  are  external  and  internal

(i) External Appearance

The external appearance may be due to the cause  producing suffocation, or to asphyxia.

(a) Appearance due to the Cause Producing  Suffocation: In homicidal smothering, affected by  the forcible application of the hand over the mouth  and  the  nostrils,  bruises  and  abrasions  are  often  found on the lips and on the angles of the mouth,  and  alongside  the  nostrils.   The  inner  mucosal  surface of  the  lips  may  be found lacerated  from  pressure on the teeth.  The nose may be flattened,  and its septum may be fractured from pressure of  the hand, but these signs are, in Modi’s experience,  very rare.  There may be bruises and abrasions on  the cheeks and the molar regions, or on the lower  jaw, if there has been a struggle.  Rarely, fracture  or dislocation of the cervical vertebrae may occur  if  the  neck  has  been  forcibly  wrenched  in  an  attempt  at  smothering  with  the  hand.   No  local  signs of violence will be found, if a soft cloth or  pillow  has  been  used  to  block  the  mouth  and  nostrils.

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In compression of the chest,  external signs  of  injury  may  not  be  present,  but  the  ribs  are  usually fractured on both the sides.  In homicidal  compression  of  the  chest  brought  about  by  the  hands  or  knees  of  a  murderer  or  by  some other  hard material, bruises and abrasions, symmetrical  on  both  sides,  are  usually  found  on  the  skin  together  with  extravasation  of  the  blood  in  the  subcutaneous tissues.  Rarely, along with the ribs  the sternum is also fractured.  It should, however,  be  remembered  that  the  traumatic  asphyxia  produces variable findings.  In a fair person, purple  suffusion of skin above the point of compression is  apparent  in  severe  fixation  of  the  chest  by  mechanical  compression.   There may not be any  external  or  internal  signs  where  the  pressure  is  slight or evenly distributed.  

(b) Appearance due to asphyxia: The  face  may be pale or suffused.  The eyes are open, the  eyeballs  are  prominent,  and the  conjunctivae  are  congested  and  sometimes  there  are  petechial  hemorrhages.   The lips are livid,  and the tongue  sometimes protruded.  Bloddy froth comes out of  the  mouth  and  the  nostrils.   The  skin  shows  punctiform ecchymoses with lividity of the limbs.  Rupture  of  the  tympanum  may  occur  from  a  violent effort at respiration.  

(ii) Internal Appearance

Rags,  mud  or  any  other  foreign  matter  may  be  found in the mouth, throat, larynx or trachea, when  suffocation has been caused by the impaction of a  foreign substance in the air-passages.  It may also  be found in the pharynx or the oesophagus.  The  mucous membrane of the trachea is usually bright  red, covered with bloody froth and congested.  The  lungs  are  congested  and  emphysematous.   They  may  be  lacerated  or  contused  even  without  any  

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fracture  of  the  rib,  if  death  has  been  caused  by  pressure  on  the  chest.   Punctiform  subpleural  ecchymoses (Tardieu spots) are usually present at  the root, base, and the lower margins of the lungs,  but  they  are  not  characteristic  of  death  by  suffocation,  as  they  may  also  be  present  in  asphyxia death from other causes.  They are also  found on the thymus, pericardium, and along the  roots of the coronary vessels.  The lungs may be  found quite normal, if death has occurred rapidly.  The right side of the heart is often full of dark fluid  blood,  and  the  left  empty.   The  blood  does  not  readily coagulate; hence, wound caused after death  may bleed.  The brain is generally congesting, and  so are the abdominal organs, especially the liver,  spleen and kidneys”

In his opinion, to come to a definite conclusion it is very essential to  

look for evidences of violence in the shape of external marks surrounding  

the mouth and nostrils or on inside the mucosal surface, or on the chest.  

According to the learned author, circumstantial evidence should always be  

taken into consideration to establish the proof of death from suffocation.  In  

regard  to  the  medico-legal  question  as  to  whether  the  suffocation  was  

suicidal, homicidal or accidental, the learned author stated:

“Homicidal suffocation by pressure on the chest is  sometimes resorted to in India, but in the case of  adults,  it  is  often  combined  with  smothering  or  throttling, and it is usually an act of more than one  person…..  

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A form of homicidal suffocation practiced in  Northern India is known as ‘Bansdola’, although it  is not so common now as it used to be formerly.  In  this  form,  the  victim’s  chest  is  squeezed  so  forcibly  between  two  strong  wooden  planks  or  bamboos, one being placed across the upper part of  the  chest  and  the  other  across  the  back  of  the  shoulders,  that  the  respiratory  act  is  interfered  with,  the  muscles  are  lacerated  and  the  ribs  are  fractured.  If the force applied is very severe, the  lungs may be crushed and lacerated.

Burying alive used to be resorted to in India  as  a  form of  punishment  and  lepers  used  to  be  sometimes buried alive.

In the case of infants dying under suspicious  circumstances and afterwards exhumed, a question  may arise as to whether they had been buried alive.  The presence of fine dust in the oesophagus and  stomach is a convincing proof of the infant having  been buried alive.  In a burial after death, fine dust  may be found in the upper air-passages, but not in  the oesophagus or the stomach.  

Accidental  suffocation  is  frequent  and  is  produced as described above and by being buried  under the sand or the earth while digging deep pits;  here  the respiratory tract  is  packed with  sand or  earth.”

9. We wish the expert would have been forthright in her view in regard  

to the cause of death.  A different conclusion was required to be arrived at  

keeping in view the fact that a large number of symptoms were absent which  

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ordinarily point out to the cause of death of asphyxia by smothering.  Most  

of the symptoms noticed by Modi should have remained present.

10. There  was  frothy  fluid  discharge  of  blood  from  mouth  and  nose.  

However,  no frothy fluid blood was found on the pillow.  It  may not be  

imperative but that could have been a lead to a fairly definite opinion.  It is  

in the aforementioned situation, the learned Sessions Judge opined that death  

might not have been caused by asphyxia, stating:

“In the present  case there is  reasonable doubt in  regard to the cause of death of the deceased and it  is  not  safe  to  rely  upon the evidence  of  P.W. 8  solely for the purpose of coming to the conclusion  that  the  deceased’s  death  is  proved  by  the  prosecution  to  be  homicidal.   While  viewing  on  that  basis,  P.W.  10  the  Medical  Officer  in  her  evidence had mentioned as detailed below:

Generally  during  the  time  of  asphyxia  the  eyes  will  be  open  and  the  tongue  will  be  protruding outside.   Further  the right  side of  the  heart might be full of blood and the left side being  empty.   Further  at  the  time  of  asphyxia,  the  kidneys  also  should  be  found  distended  and  likewise  the  brain.   Generally  on  account  of  asphyxia and death is being caused Tardien sport  should  be  in  the  eyes.   Further  at  the  time  of  asphyxia there should be hybakia should be found.  (Hybakia means the oxygen particles will be lesser  in number in the blood).  Further the face and head  will be found distended Synochiam with numerus  petichal should be found. Further there should be  mucous  in  the  mouth  and  throat.   Further  

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Generally  during  the  time  of  asphyxia,  there  should  be  alviovis  and  idimafluid  in  the  lungs.  Further  there  should  be  camaris  with  collappus  with  intersavin  enpiceomia.   But  the  aforesaid  signs  were  not  found  in  the  dead  body  and  therefore  there  was  no  opportunity  for  the  deceased to die on account of asphyxia.

11. The learned judge noticed that P.W.10 was specific in her statement  

that paleness in the brain could not have been noticed as it had liquefied by  

that  time.  It  was also found that  P.W. 10 had deviated from her earlier  

opinion and stated that it was not correct to say that no opinion of cerebral  

anoxia could be given or arrived at in the case of liquefaction of the brain.  

No saliva,  blood and tissue cells  were found in the pillow; no scratches,  

distinct nail marks, or laceration of the soft parts of the victim’s face was  

noticed.  It was not brought to notice that pillow was a soft one or not.  No  

bruising or laceration was found in the lips, gums and tongue.   The conduct  

of the accused that he had all  along been present  and the opinion of the  

Doctor did not satisfy the tests laid down in the authoritative book of Modi,  

it was held:

“Further the evidence of Medical Officer P.W. 10  having mentioned that the reason for the death of  the wife of the accused was on account of asphyxia  but the same is discrepant with the Medical Book.  Further in the report Ex. P.6 no such symptom had  been mentioned.  Hence just because the accused  and his wife happened to be at the same place and  

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on that ground it cannot be said that the accused  had committed  the  aforesaid  criminal  offence  as  mentioned on behalf of the prosecution.”

12. The High Court, on the other hand, while noticing only a part of the  

said tests proceeded on the premise that those symptoms spoken to by her in  

her evidence were not noted by her in the post-mortem report.  Apart from  

the fact that the quotation from Modi does not take into consideration all the  

symptoms noted therein, a wrong test was applied that all the features in a  

given case  would not  be available  where  the  body is  burnt  after  killing,  

which  is  not  the  case  herein.   Despite  noticing  that  some  of  the  usual  

symptoms that would be available in the case of death due to asphyxia by  

smothering were necessary still a purported formal opinion was arrived at  

that the prosecution had definitely established the cause of death.  A similar  

question came up for consideration in Mohd. Zahid vs. State of T.N. [1999  

SCC (Crl.) 1066], wherein the Doctor differed with a well known tests of  

medical jurisprudence.  The suggestion of the defence with reference thereto  

cannot  be  lightly  brushed  aside  particularly  when  post-mortem  was  

conducted after a few days.  P.W. 10 did not refer to any other authoritative  

text to support her opinion.  This Court in the fact of that case opined:

“…A  cautious  reading  of  this  part  of  PW-8's  evidence shows that in one part PW-8 admits that  

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the  one  and  only  method  by  which  a  medical  examiner can conclude that the cause of death was  due  to  cerebral  anoxia  is  by  noticing  the  pale  appearance  of  the  brain.  She  also  specifically  admits that there will not be any other change in  the brain in the case of cerebral anoxia and since  the brain had become liquefied, it cannot be stated  if  the brain had become pale or not.  She is  also  specific  in her  statement  that  there was no other  sign  by  which  she  could  say  that  was  cerebral  anoxia.  Stopping  for  a  while  at  this  stage  and  examining PW-8's evidence, one finds that at the  time  of  the  post  mortem  examination,  Jabeena's  brain had liquefied and there was no way by which  PW-8 could have noticed the paleness in the brain.  However,  in  the  latter  part  of  her  evidence,  she  deviates from her earlier opinion and states that it  is  not  correct  to  say that  no opinion of  cerebral  anoxia could be given or arrived at in the case of  liquefaction of the brain. These two statements are  diametrically opposed to each other and we find it  rather difficult to accept this part of her evidence  which  is  so  self-contradictory.  In  our  view,  the  opinion  of  PW-8  that  the  cause  of  death  as  recorded by her is due to the cumulative effect of  asphyxia and cerebral anoxia, is rather difficult to  accept.

24. We  are  aware  of  the  fact  that  sufficient  weightage should be given to the evidence of the  doctor  who  has  conducted  the  post  mortem,  as  compared  to  the  statements  found  in  the  text  books,  but  giving weightage does  not  ipso facto  mean  that  each  and  every  statement  made  by  a  medical  witness  should  be  accepted  on  its  face  value  even  when  it  is  self-contradictory.  This  is  one  such  case  where  we  find  that  there  is  a  reasonable doubt in regard to the cause of death of  Jabeena and we find it  not safe to rely upon the  evidence  of  PW-8,  solely,  for  the  purpose  of  

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coming to  the  conclusion  that  Jabeena's  death is  proved by the prosecution to be homicidal.”

13. In State of Himachal Pradesh vs. Jeet Singh [(1999) 4 SCC 370], this  

Court held:

“19. It  appears  to  us  that  the  High  Court  has  totally overlooked the features of the victim which  are consistent with the consequence of her having  been subjected to smothering. The injuries found  on  both  the  legs  of  the  dead  body  are  proof  positive  that  it  was  a  homicidal  smothering.  We  can place reliance on the opinions of both sets of  doctors  that  even  without  seeing  the  chemical  examiner's report, they could say that death of the  deceased  might  be  due  to  smothering,  and  after  seeing  the  chemical  examiner's  report,  a  doctor  could  say  that  poison  would  also  have  worked  fatally in the victim.”

14. So  far  as  the  circumstance  that  they  had  been  living  together  is  

concerned, indisputably,  the entirety of the situation should be taken into  

consideration.  Ordinarily when the husband and wife remained within the  

four walls of a house and a death by homicide takes place it will be for the  

husband  to  explain  the  circumstances  in  which  she  might  have  died.  

However, we cannot lose sight of the fact that although the same may be  

considered to be a strong circumstance but that by alone in absence of any  

evidence of violence on the deceased cannot be held to be conclusive.  It  

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may be difficult to arrive at a conclusion that the husband and husband alone  

was responsible therefor.   

15. Mr. Kanagaraj has placed strong reliance upon the decision of this  

Court in  Trimukh Maroti Kirkan  vs.  State of Maharashtra [(2006) 10 SCC  

681] wherein it was held:

“18. The question of burden of proof where some  facts  are  within  the  personal  knowledge  of  the  accused was examined in State of West Bengal v.  Mir  Mohammad  Omar  and  Ors.[(2000)  8  SCC  382].  In this  case the assailants  forcibly dragged  the  deceased,  Mahesh  from the  house  where  he  was taking shelter  on account  of  the  fear  of  the  accused and took him away at about 2.30 in the  night. Next day in the morning his mangled body  was  found lying  in  the  hospital.  The  trial  Court  convicted the accused under Section 364 read with  Section 34 IPC and sentenced them to 10 years’  RI. The accused preferred an appeal against their  conviction before the High Court and the State also  filed  an  appeal  challenging  the  acquittal  of  the  accused for murder charge. The accused had not  given  any  explanation  as  to  what  happened  to  Mahesh  after  he  was  abducted  by  them.  The  learned Sessions Judge after referring to the law on  circumstantial  evidence  had  observed  that  there  was a missing link in the chain of evidence after  the  deceased  was  last  seen  together  with  the  accused  persons  and  the  discovery  of  the  dead  body in  the  hospital  and had concluded that  the  prosecution  had failed to  establish  the  charge  of  murder  against  the  accused  persons  beyond  any  reasonable  doubt.  This  Court  took  note  of  the  

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provisions of Section 106 of the Evidence Act and  laid down the following principle in paras 31 to 34  of the reports:  

31. The pristine rule that the burden of proof  is on the prosecution to prove the guilt of the  accused should not be taken as a fossilised  doctrine as  though it  admits  no process  of  intelligent  reasoning.  The  doctrine  of  presumption is not alien to the above rule,  nor would it impair the temper of the rule.  On  the  other  hand,  if  the  traditional  rule  relating  to  burden  of  proof  of  the  prosecution  is  allowed  to  be  wrapped  in  pedantic  coverage, the offenders in serious  offences  would  be  the  major  beneficiaries  and the society would be the casualty.

32.  In  this  case,  when  the  prosecution  succeeded in establishing the afore-narrated  circumstances, the court has to presume the  existence of certain facts. Presumption is a  course recognised by the law for the court to  rely on in conditions such as this.

33. Presumption of fact is an inference as to  the existence of one fact from the existence  of some other facts, unless the truth of such  inference is disproved. Presumption of fact  is  a  rule  in  law  of  evidence  that  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  the  most  probable  position.  The  above  principle  has gained legislative  recognition  in India when Section 114 is incorporated in  the Evidence Act. It empowers the court to  presume the existence of any fact which it  thinks  likely  to  have  happened.  In  that  

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process  the  court  shall  have  regard  to  the  common  course  of  natural  events,  human  conduct  etc.  in  relation  to  the  facts  of  the  case.

34. When it is proved to the satisfaction of  the court that Mahesh was abducted by the  accused and they took him out of that area,  the  accused alone knew what  happened to  him until he was with them. If he was found  murdered  within  a  short  time  after  the  abduction  the  permitted  reasoning  process  would  enable  the  court  to  draw  the  presumption that the accused have murdered  him. Such inference can be disrupted if the  accused  would  tell  the  court  what  else  happened to Mahesh at least until he was in  their custody.’ ”

16. Yet again in Ponnusamy vs. State of Tamil Nadu [(2008) 5 SCC 587],  

this Court held:

“21. We have to consider the factual background of  the  present  case  in  the  light  of  the  relationship  between the parties. If his wife was found missing,  ordinarily, the husband would search for he. If she  has died in an unnatural situation when she was in  his  company,  he  is  expected  to  offer  an  explanation therefor. Lack of such explanation on  the  part  of  the  appellant  itself  would  be  a  circumstantial evidence against him.  

27. We must also take into consideration the fact  that the dead-body was decomposed with maggots  all  over  it.  Other  marks  of  strangulation  which  could have been found were not to be found in this  

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case. The dead body was found after a few days.  We  are,  therefore,  of  the  opinion  that  medical  evidence does not negate the prosecution case.”

17. In both the aforementioned cases, the death occurred due to violence.  

In this case, there was no mark of violence.  Appellant has been found to be  

wholly innocent.  So far as the charges under Section 498A or Section 4 of  

the Dowry Prohibition Act is concerned, the evidence of the parents of the  

deceased being P.W. 1 and P.W. 2 as also the mediators P.Ws.4 and 5 have  

been disbelieved by both the courts below. That part of the prosecution story  

suggesting strong motive on the part of the appellant to commit the murder,  

thus, has been ruled out.   

18. However,  we  may  notice  that  in  Mohd.  Zahid  (supra),  this  Court  

opined:

“Of course, the prosecution has established that the  appellant was the only person in the company of  Jabeena and her child at the relevant time on the  fateful day.  But this again stops the prosecution  case  in  the  realm  of  suspicion,  which  by  itself  cannot be substituted for hard evidence.  Aware as  we  are  of  the  fact,  a  budding  life  came  to  an  unfortunate premature end, our jurisprudence will  not permit us to base a conviction on the basis of  the evidence placed by the prosecution in this case  

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and  the  benefit  of  a  reasonable  doubt  must  be  given to the appellant.”

19. In Sharad Birdhichand Sarda vs. State of Maharashtra [(1984) 4 SCC  

116], this Court has laid down the parameters for arriving at a opinion in  

regard  to  proof  of  a  prosecution  case  on  the  basis  of  the  circumstantial  

evidence, stating:

“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 Sahebrao Bobade v.  State  of Maharashtra  [(1973) 2 SCC 793] where  the following observations were made: (SCC para  19, p.807: SCC (Cri) p.1047]

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.

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(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.

154. These five golden principles, if we may say  so, constitute the panchsheel of the proof of a case  based on circumstantial evidence.”

It was furthermore held:

“163. We then pass on to another important point  which seems to have been completely missed by  the High Court. It is well settled that where on the  evidence  two  possibilities  are  available  or  open,  one which goes in favour of the prosecution and  the other which benefits an accused, the accused is  undoubtedly  entitled  to  the  benefit  of  doubt.  In  Kali Ram v. State of Himachal Pradesh [(1973) 2  SCC  808],  this  Court  made  the  following  observations:  

Another  golden thread which runs through  the web of the administration of justice in criminal  cases  is  that  if  two  views  are  possible  on  the  evidence adduced in the case, one pointing to the  

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guilt of the accused and the other to his innocence,  the view which is favourable to the accused should  be adopted. This principle has a special relevance  in cases wherein the guilt of the accused is sought  to be established by circumstantial evidence.”

20. Yet again in  Vinay D. Nagar  vs.  State of Rajasthan  [(2008) 5 SCC  

597], this Court held:

“9. The principle of law is well established that  where the evidence is  of a circumstantial  nature,  circumstances from which the conclusion of guilt  is to be drawn should in the first instance be fully  established, and the facts, so established, should be  consistent only with the hypothesis of the guilt of  the  accused.  The  circumstances  should  be  of  a  conclusive  nature  and they should be such as to  exclude  hypothesis  than  the  one  proposed  to  be  proved.  In  other  words,  there  must  be  chain  of  evidence  so  complete  as  not  to  leave  any  reasonable ground for a conclusion consistent with  the innocence of the accused and it must be such as  to show that within all human probability the act  must have been done by the accused.”

21. This Court in K.T. Palanisamy vs. State of Tamil Nadu [(2008) 3 SCC  

100], held:

“18. All the prosecution witnesses are related to  the deceased. It is difficult for us to believe that all  the witnesses saw the deceased accompanying the  accused  persons  one  after  the  other  at  different  places. Therefore, chances of their deposing falsely  cannot be ruled out. Be that as it may, when the  offence  is  said  to  have  been  committed  and  the  

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circumstantial  evidence  is  made  the  basis  for  establishing  the  charge  against  the  appellant,  indisputably  all  the  links  must  be  completed  to  form the basis for his conviction.”

22. Another circumstance which had weighed with the High Court was  

inability on the part of the appellant to prove his defence as stated in his  

examination under Section 313 of the Code of Criminal Procedure, which  

reads as under:

“At the time of the marriage I did not ask for any  Sreedhanam.   Further,  as  per  our  custom in  our  caste I had offered the Kodi and Mangal Sutra, to  my wife. Further, at the time of the marriage my  father in law and mother in law had no means to  offer the Sreedhanam and therefore I did not ask  for the same are anticipated for the same.  Myself  and my wife  had been living very happily.   My  wife  gave  birth  to  a  child  at  Appakudal,  Sakthi  Sugar Hospital and the expenses pertaining to the  delivery had been borne by me.  After the delivery  my wife and the child had been taken to our house.  Again my wife conceived.  Myself, and my wife  along with  my parents  were  living  happily.   On  26.05.99 night after watering the field and when I  came to the house around 5.00 a.m. my wife was  found  dead  and  immediately  I  conveyed  the  information to all.  My mother-in-law and father- in-law  demanded  that  the  properties  should  be  settled on my child but I refused by stating that I  will protect my child.  Hence, as and after thought  they had foisted the false case against me.   

I am innocent.”  

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23. The finding of the High Court that appellant had to prove title of his  

land ex facie is incorrect.   P.W. 1 categorically  stated that  appellant  had  

three acres of land.  P.W. 3 also accepted that land of the appellant is almost  

by the side of his land.  In view of the admission made by the prosecution  

witnesses,  the  High  Court,  in  our  opinion,  committed  a  serious  error  in  

arriving at a conclusion that he did not possess any land whatsoever.  Mr.  

Kanagaraj, however, would submit that even if he had gone for irrigating his  

land, the same may not take much time.  In any event, having regard to the  

evidence of P.W. 3, it is wholly unlikely that he was absent from his house.  

There are two aspects of the matter.  One is that the reasoning of the High  

Court that he did not have any land whatsoever and, therefore, he must be  

presumed to have been in his house only appears to be wholly incorrect.  But  

even assuming that he did not have any land and he in fact went to P.W. 3  

for the purpose of taking his wife to hospital may not by itself be a ground  

for holding him guilty.  Failure to prove the plea of alibi and/or giving of  

false evidence itself may not be sufficient to arrive at a verdict of guilt; it  

may be an additional circumstance.  But before such additional circumstance  

is  taken  into  consideration,  the  prosecution  must  prove  all  other  

circumstances to prove his guilt.   

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24. Another aspect of the matter cannot be lost sight of.  According to  

P.W.  2,  police  had  already  arrived  when  they  reached  at  the  place  of  

occurrence on the next day morning.  P.W. 2 in his evidence, stated:

“While, ourselves along with the relatives reached  the village of my son-in-law it would be 6.00 or  7.00  a.m.  While  we  went  there  the  police  were  present,  who  had  enquired  the  villagers  and  ourselves.  The Tahsildar had made the enquiry but  I do not remember the date.”  

The  said  statement  was  corroborated  by  P.W.  3  in  his  evidence,  

stating:

“I  went  and  conveyed  the  information  to  her  mother and again returned where the wife of the  accused was lying and he could be around 4 or 5  a.m. I am not aware as to who had conveyed the  information to the police.  Within a short time after  I went there the police arrived and the father-in- law  and  mother-in-law  of  the  accused  arrived  around 9’o clock.  Prior to the arrival of the father- in-law and mother-in-law of the accused the police  enquired me, and also the neighbours.  After the  arrival  of  father-in-law and mother-in-law of the  accused they were enquired by the police.”

P.W. 11 – Sivakumar, Sub-Inspector in his evidence could not say at  

what time he had arrived at the place of occurrence when a pointed question  

was put to him.   

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25. The  police  must  have  received  some information.   Why the  other  

information was suppressed by the prosecution has not been explained.  In a  

situation of this nature particularly if an FIR was lodged after recording the  

statements  of  the  witnesses,  another  FIR  would  not  be  admissible  in  

evidence and ordinarily an investigation cannot be started without recording  

the FIR.   

26. In Mohar Singh vs. State of Rajasthan & ors. [(1998) 9 SCC 654], the  

same  was  held  to  be  one  of  the  circumstances  against  the  prosecution,  

stating:

“The  High  Court  has  also  pointed  out  that  no  reliance  could  be  placed  on  the  FIR  which  contains the names of the assailants because PW  1 in his cross-examination has admitted that the  FIR was taken down after  the Inspector visited  the site and they were then taken to the police  station.”

27. Admittedly, a plastic bottle was found near the cot.  It was seen by  

P.W. 3. However, his statement that he did not find any smell coming out  

from the mouth of the deceased is difficult to accept.  He is not an expert.  It  

is  wholly  unlikely  that  he  having  observed that  death  had  already  taken  

place,  he  would  smell  the  mouth  of  the  deceased.   The  possibility  that  

28

having seen the bottle which admittedly at one point of time contained some  

poison, appellant’s assuming that she had consumed poison and rushing to  

the  house  of  the  P.W.  3  who  might  have  been  in  a  position  to  make  

arrangement for shifting her to hospital cannot be ruled out.  In so assuming,  

he might  have committed  a  mistake  but  it  is  also difficult  to  arrive  at  a  

definite conclusion that only because a plastic bottle was found, appellant  

must have deliberately kept it so as to raise a false plea.  We do not think  

that any such conclusion can be arrived at.  If such a conclusion was arrived  

at, the same would amount to surmise and conjecture.  The High Court was  

considering a judgment of acquittal; it set aside a part of the finding of the  

learned Sessions Judge.  It could not have interfered with the judgment of  

acquittal if two views were possible.  The judgment of the learned Sessions  

Judge, in our opinion, cannot be said to be wholly unreasonable or otherwise  

perverse.   Circumstances  brought  on  record  by  the  prosecution,  in  our  

opinion,  are  not  such  which  would  lead  to  a  definite  conclusion  that  

appellant  and  appellant  alone  had  committed  the  offence.   In  the  

aforementioned situation, the High Court should have approached the case  

with some caution.  

28. In K. Prakashan vs.  P.K. Surenderan [(2008) 1 SCC 258], this Court  

held:

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“We, therefore, are of the opinion that keeping in  view  the  peculiar  fact  situation  obtaining  in  the  present  case  it  cannot  be said  that  the  judgment  passed by the learned trial judge was perverse or  suffered from any legal infirmity.  It was not a case  where the learned trial judge failed to consider the  evidence brought on record and/or misappreciated  the same.”

29. For the reasons aforementioned, the impugned judgment of the High  

Court cannot be sustained, which is set aside accordingly.  The appeal is  

allowed.   Appellant  is  in  custody.   He  is  directed  to  be  set  at  liberty  

forthwith unless wanted in any other case.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.  [Cyriac Joseph]

New Delhi; May 13, 2009

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