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CASE NO.: Appeal (crl.)  429 of 2006

PETITIONER: Ponusamy

RESPONDENT: State of Tamil Nadu

DATE OF JUDGMENT: 10/04/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T REPORTABLE

CRIMINAL APPEAL NO. 429 OF 2006

S.B. SINHA, J.

1.      This appeal is directed against the judgment and order dated 23rd June,  2005 passed by a Division Bench of the High Court of Judicature at Madras  in Criminal Appeal No. 937 of 1998 whereby and whereunder an appeal  from a judgment of conviction and sentence passed by the Ist Additional  District Judge-cum-Chief Judicial Magistrate, Erode dated 12th October,  1998 in S.C. No. 93 of 1998 convicting  the appellant herein for commission  of an offence under Section 302 of the Indian Penal Code as also under  Section 201 thereof and sentencing him to undergo rigorous imprisonment  for life and two years respectively, was dismissed.   

2.      Deceased Selvi was the wife of the appellant.  She was earlier married  to one Easwaran, PW-9.  Allegedly Easwaran had married one Balamani and  after divorcing her, he married the deceased.  He, however, continued to  have relations with Balamani.  He purported to have divorced Balamani by a  letter.  The deceased was living with her mother Ramathal, PW-1.  Appellant  thereafter married the deceased.  He had been informed, about the fact of the  earlier marriage of the deceased.  He agreed to the proposal of marriage but  wanted two acres of land.  A Deed of Gift in favour of the deceased was  executed by her father.  Appellant wanted the same to be registered in his  name.  His request was not acceded to.   He left the house of PW-1 after  three days of marriage.  A year thereafter, he intended to live with the  deceased and approached Thangavel, PW-2, therefor.  As the deceased also  agreed to the said proposal, they left the house of PW-1 on 5th March, 1997.   She was not seen thereafter.  Allegedly in the morning of 10th March, 1997,  the appellant met PW-2 and informed him that the deceased had gone away  from his house on that date.  A search for her was carried out.  On the next  date, the appellant was seen at the Sevoor bus stop.  Kannan Naicker, PW-10  was also present there.  He asked the appellant and questioned the  deceased’s whereabouts, in response whereto he allegedly disclosed that he  had murdered her on 9th March, 1997.  PW-10 allegedly became panicky.   He became sick.  He then requested Arunachalam @ Mani, PW-11, to take  him to a doctor.  When they returned from the doctor’s clinic, they found the  appellant in the office of the Village Administrative Officer, PW-18.  He  purported to have made a confession again before PW-18 that he had  murdered Selvi before PW-18.  He also had a packer of paper in his hand.            3.      PW-10 then requested PW-11 to inform PW-2 about the matter.  On  receiving the said information an attempt was made to lodge a First  Information Report at Sathyamangalam police station.  The First  Information Report was refused to be registered thereat in the absence of any

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dead body or any other evidence with regard to the murder.  A search was  conducted for the dead body.  On the bank of L.B.P. canal dead body was  found on 14th March, 1997 which fell within the jurisdiction of Kadathur  police station.  A complaint was made before Ramasamy, Inspector of  Police, PW-13, at 10.30 a.m. on the same day, whereupon a First  Information Report was registered under Section 302 and Section 201 of the  Indian Penal Code.  Investigation was taken up by PW-22, the Deputy  Superintendent of Police of Gobichettipalayam.     

4.      PW-1 identified the dead body on the basis of a talisman, which was  found on her hand, as also on identification of her saree.  A key was found  tagged in the saree.  The key was removed.  On a query enquiry made by  PW-22, in regard to the lock for which the key was used, it was stated that  the lock was fitted to a trunk.  The trunk was brought.  The key was fitted in  the lock of the trunk.  It was opened with the said key.   

5.      An inquest was conducted.  The dead body was also subjected to  postmortem examination.  In the said report it was stated :-

"Highly decomposed with maggots all over the body.   Teeth 1/3 nose, eye, mouth absent.  Thorax : No fracture  ribs.  Heart : Partially decomposed.  Lungs :  Decomposed.  Hyoid Bone : Intact.  Stomach, Liver,  Spleen and Kideny : Partially liquefied with greenish  discolouration.  Intestine, Bladder and Uterus : Partially  decomposed.  Head : No fracture skull.  Brain :  Completely liquefied."  

6.      PW-18, the Village Administrative Officer, in the meantime took the  appellant to the Tahsildar, PW-19.  Not only he confessed that he had  murdered his wife and thrrown the dead-body in the canal but also produced  a ’thali chain’ , M.O. 1 and ear rings, M.O.2 belonging to the deceased.   Confessional statement of the appellant was reduced into writing.  He was  thereafter produced before the Judicial Magistrate.

7.      Admittedly, there was no eye witness to the occurrence.   

8.      The entire prosecution case is based on circumstantial evidence.  The  Learned Sessions Judge in his judgment found the following circumstances  to arrive at his conclusion with regard to the guilt of the appellant. :-

1)      Deceased was last seen in his company on 5th March,  1997. 2)      She was not seen in anybody else’s company between 5th  March, 1997 and 10th March, 1997. 3)      Appellant made an extra judicial confession not only  before PW-2 but also before PWs. 10 & 18.   4)      On the basis of his confession that the dead body had  been thrown in L.B.P. canal a search for the dead body  was made and recovered.   5)      Dead body was that of a female.  It was identified to be  that of the deceased with reference to the manglasutra  and some other jewellery which were found on her  person.  Photograph of the deceased  was superimposed  on the photograph of the dead-body and it was found to  be that of her.  6)      Appellant produced the belongings of the deceased  before the Village Administrative Officer, PW-18,  which admittedly belonged to her.  

9.      The appeal preferred thereagainst by the appellant has been dismissed  by the High Court by reason of the impugned judgment.

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10.     Mr. A.T.M. Rangaramanajam, learned Senior Counsel appearing on  behalf of the appellant, in support of the appeal would submit :-

1)      It was improbable that the appellant had confessed his guilt  before PW-2. 2)      The purported extra judicial confession by the appellant before  PW-10 should not be relied upon, having regard to the latter’s  conduct, inasmuch, he did not report thereabout to the police on  the pretext of his becoming sick in respect of which no material  was brought on record.  2)      Post-mortem report clearly established that the body recovered  was in a highly decomposed stage which was, thus, not in a  position to be identified, and, in that view of the matter, the  corpus delicti having not been proved, the impugned judgment  cannot be sustained.   4)      No fracture having been found on hyoid bone, it is evident that  the deceased did not die of strangulation which was the positive  case of the prosecution. 5)      No explanation having been furnished for the delay in lodging  the First Information Report, the entire prosecution case is  suspicious. 67)     Conduct of the prosecution witnesses and in particular that of  PW-1, PW-2 and PW-10 is such, that would lead to the  conclusion that they are not trustworthy witnesses. 7)      Extra judicial confession, in any event, being a weak evidence,  it was obligatory on the part of the prosecution to lead   evidence corroborating thereto. 8)      Extra judicial confession in any event being contrary to or  inconsistent with the medical report, it would not be safe to rely  thereupon.   

10.     Mr. R. Shunmugasundaram, learned Senior Counsel appearing on  behalf of the State, on the other hand urged :-

1)      The dead body having been identified with reference to  manglasutra, key and saree, the courts below rightly held that  the dead-body was that of the deceased ’Selvi’.   2)      The jewellery items which were handed over by the appellant  himself in a packet, were identified by PW-1 when she was  afforded an opportunity to do so. 3)      It is not correct to contend that PW-10, despite extra judicial  confession made before him, did not take any step in that behalf   as he had immediately sent PW-11, Mani, to inform PW-2  thereabout.  It is thereafter only, that they went to the police  station.   4)      Sufficient explanation had been offered by PW-1, in regard to  the delay in lodging of the First Information Report, having  regard to the fact that Sathyamangalam police station had  refused to record the First Information Report in the absence of  the dead body and/or any other record.  A First Information  Report was lodged only after the dead body was seen and  identified with reference to the talisman, M.O.4;  key, M.O. 5   and the silver ring which was found on her toe.  5)      Thiru Devarajan, who examined himself as PW-22, and was  working as Deputy Superintendent of Police, was a witness to  the identification of the dead-body to be that of Selvi from the  ninji, "dayath" tied on the hand and from the key tied to the end  of the saree.  Only at his instance, the trunk was brought and the  lock opened with the key. 6)      Requisition, Ext.P.3, was made by the Superintendent of the  police for chemical test and the Chemical Text Report, Ext.P.5  categorically established the identity of the deceased. 7)      Absence of fracture on the hyoid bone itself would not lead to  the conclusion that the deceased did not die of strangulation as

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medical jurisprudence suggests that only in a fraction of such  cases, a fracture of hyoid bone is found.   

11.     The relationship of the appellant with that of the deceased is not in  dispute.  That they were married and immediately thereafter started living in  the house of P-1 is also not denied or disputed.  It further stands established  that PW-2 is the husband of Rukmani, another daughter of PW-1.  It has also  not been disputed that the deceased was earlier married to Easwaran, PW-9.   The prosecution has also brought on record a Deed of Gift dated 25th  January, 1996 executed by the husband of PW-1 in favour of the deceased.   There is also no serious dispute that the appellant did not maintain any  relationship with the deceased for about a year.  They were last seen together  on 5th March, 1997, when they travelled together from the house of PW-1.  

12.     Voluntary statement made by the appellant to PW-2 on 10th March,  1997 that she had been missing was found by both the courts below to be  untrue.

13.     Indisputably, some delay took place in lodging the First Information  Report.  Till 11th March, 1997 PW-1 or for that matter PW-2, was not sure  about the death of the deceased.  Only when an extra judicial confession was  made by the appellant, an attempt was made to lodge a First Information  Report.  

14.     The contention of the learned counsel  that the statement to the said  effect, purported to have been made,  by PW-1 should not be relied upon as  no officer from the police station had been examined to establish the said  fact, cannot be accepted for more than one reason.  PW1 is a rustic villager.   She is an illiterate lady.  According to her, she had been turned away from  the police station on the premise that no dead body was recovered or there  being no other evidence relating to her death.  No exception to such a  statement can be taken.  The courts cannot be oblivious of such conduct on  the part of the police officers. Apathy on the part of the police officers to  accept complaints promptly is well known phenomena.  

They were searching for the deceased earlier but without success.   Only on the disclosure statement made by the appellant before PW-10 and  the police officer at Sathyamangalam police station having refused to record  the First Information Report, they started searching for the body on the bank  of the canal.  The Investigating Officer, Village Administrative officer as  also other prosecution witnesses , clearly proved the discovery of a dead  body.  Identification of the dead body on the basis of the manglasutra, saree  as also the sliver ring on the toe of the deceased is not in dispute.   Significantly, a key was also recovered.  PW-22, a responsible officer, with  a view to satisfy himself as regards the identity of the dead body, with  reference to the key tied at the end of the saree, asked PW-2 to bring the  trunk and found it to be of the lock put on the said trunk.  

15.     Attempts on the part of the prosecution to establish identity of the  dead body to be that of the deceased did not stop there.  It was sent for  opinion of a Chemical Examiner.  It was opined :-

"       During superimposition, the following  observations were made :-

a)      The anthroposcopic land mark on the fact in item 1  and those on the skull item 2 fitted fairly well.

b)      The outline of the face in item 1 and the outline of  skull item 2 were found to be in fair congruence.  

OPINION

The skull item 2 could very well have belonged to  the female individual seen in photograph item 1."

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The said report has been proved.  Its’ veracity is not disputed before  us.  We do not find any cogent reason to doubt its correctness thereof.   

16.     Appellant is said to have thrown the dead-body in the canal.  The fact  that there was sufficient water in the canal has also been established.   In a  situation of this nature, a presumption about the knowledge of the appellant  in regard to location of the dead body of ’Selvi’ can be drawn.   His  confession led to a discovery of fact which had a nexus with commission of  a crime.  

17.     This Court in State of Mahasrashtra  vs.  Suresh : (2000) 1 SCC 471  opined :-   

"26. We too countenance three possibilities when an  accused points out the place where a dead body or an  incriminating material was concealed without stating that  it was conceded by himself. One is that he himself would  have concealed it. Second is that he would have seen  somebody else concealing it. And the third is that he  would have been told by another person that it was  concealed there. But if the accused declines to tell the  criminal court that his knowledge about the concealment  was on account of one of the last two possibilities the  criminal court can presume that it was concealed by the  accused himself. This is because accused is the only  person who can offer the explanation as to how else he  came to know of such concealment and if he chooses to  refrain from telling the court as to how else he came to  know of it, the presumption is a well justified course to  be adopted by the criminal court that the concealment  was made by himself. Such an interpretation is not  inconsistent with the principle embodied in Section 27 of  the Evidence Act.

18.     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.    

19.     In Trimukh Maroti Kirkan  vs.  State of Maharashtra : (2006) 10 SCC  681, it was observed :-   "22.  Where an accused is alleged to have committed the  murder of his wife and the prosecution succeeds in  leading evidence to show that shortly before the  commission of crime they were seen together or the  offence takes placed in the dwelling home where the  husband also normally resided, it has been consistently  held that if the accused does not offer any explanation  how the wife received injuries or offers an explanation  which is found to be false, it is a strong circumstance  which indicates that he is responsible for commission of  the crime.  

[See also Raj Kumar Prasad Tamarkar  vs.  State of Bihar and another : 2007  (1) SCALE 19].

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20.     It is true that the autopsy surgeon, PW-17, did not find any fracture on  the hyoid bone.  Existence of such a fracture lead to a conclusive proof of  strangulation but absence thereof does not prove contra.

       In Taylor’s Principles and Practice of Medical Jurisprudence,  Thirteenth Edition, pages 307-308, it is stated :-

"        The hyoid bone is ’U’ shaped and composed of  five parts : the body, two greater and two lesser horns.  It  is relatively protected, lying at the root of the tongue  where the body is difficult to feel.  The greater horn,  which can be felt more easily, lies behind the front part  of the strip-muscles (sternomastoid), 3 cm below the  angle of the lower jaw and 1.5 cm from the midline.  The  bone ossifies from six centres, a pair for the body and  one for each horn.  The greater horns are, in early life,  connected to the body by cartilage but after middle life  they are usually united by bone.  The lesser horns are  situated close to the junction of the greater horns in the  body.  They are connected to the body of the bone by  fibrous tissue and occasionally to the greater horns by  synovial joints which usually persist throughout life but  occasionally become ankylosed.

       Our own findings suggest that although the  hardening of the bone is related to age there can be  considerable variation and elderly people sometimes  show only slight ossification.  

       From the above consideration of the anatomy it  will be appreciated that while injuries to the body are  unlikely, a grip high up on the neck may readily produce  fractures of the greater horns.  Sometimes it would  appear that the local pressure from the thumb causes a  fracture on one side only.   

       While the amount of force in manual strangulation  would often appear to be greatly in excess of that  required to cause death, the application of such force, as  evidenced by  extensive external and soft tissue injuries,  make it unusual to find fractures of the hyoid bone in a  person under the age of 40 years.

       As stated, even in older people in which  ossification is incomplete, considerable violence may  leave this bone intact.  This view is confirmed by Green.   He gives interesting figures : in 34 cases of manual  strangulation the hyoid was fractured in 12 (35%) as  compared with the classic paper of Gonzales who  reported four fractures in 24 cases.  The figures in  strangulation by ligature show that the percentage of  hyoid fractures was 13.  Our own figures are similar to  those of Green."

22.     In ’Journal of Forensic Sciences’ Volume 41 under the Title \026  Fracture of the Hyoid Bone in Strangulation : Comparison of Fractured and  Unfractured Hyoids from Victims of Strangulation, it is stated :-

"       The hyoid is the U-shaped bone of the neck that is  fractured in one-third of all homicides by strangulation.  On this basis, postmortem detection of hyoid fracture is  relevant to the diagnosis of strangulation. However, since  many cases lack a hyoid fracture, the absence of this  finding does not exclude strangulation as a cause of

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death. The reasons why some hyoids fracture and others  do not may relate to the nature and magnitude of force  applied to the neck, age of the victim, nature of the  instrument (ligature or hands) used to strangle, and  intrinsic anatomic features of the hyoid bone. We  compared the case profiles and xeroradiographic  appearance of the hyoids of 20 victims of homicidal  strangulation with and without hyoid fracture (n = 10,  each). The fractured hyoids occurred in older victims of  strangulation (39 1 14 years) when compared to the  victims with unfractured hyoids (30 1 10 years). The age- dependency of hyoid fracture correlated with the degree  of ossification or fusion of the hyoid synchondroses. The  hyoid was fused in older victims of strangulation (41 1  12 years) whereas the unfused hyoids were found in the  younger victims (28 1 10 years). In addition, the hyoid  bone was ossified or fused in 70% of all fractured hyoids,  but, only 30% of the unfractured hyoids were fused. The  shape of the hyoid bone was also found to differentiate  fractured and unfractured hyoids. Fractured byoids were  longer in the anterior-posterior plane and were more  steeply sloping when compared with unfractured hyoids.  These data indicate that hyoids of strangulation victims,  with and without fracture, are distinguished by various  indices of shape and rigidity. On this basis, it may be  possible to explain why some victims of strangulation do  not have fractured hyoid bones."

23.     Mr. Rangaramanajam, however, relied upon Modi’s ’Medical  Jurisprudence and Toxicology’, Twenty-Third Edition at page 584 wherein a  difference between hanging and strangulation has been stated.  Our attention  in this connection has been drawn to point No.12 which reads as under :-

        Hanging        Strangulation  Fracture of the larynx and  trachea \026 Very rare and that  too in judicial hanging.  Fracture of the larynx and  trachea \026 Often found also  hyoid bone.

24.     A bare perusal of the opinion of the learned Author by itself does not  lead to the conclusion that fracture of hyoid bone, is a must in all the cases.    

25.     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 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.  

26.     There cannot be any doubt that extra judicial confession is evidence of  weaks nature as has been held in Kuldip Singh and another  vs.  State of  Punjab : (2002) 6 SCC 757   

However, it must also be noticed that therein, not only the confession  made by the appellant was found to be unbelievable, even the recovery of  the dead body, pursuant to the disclosure statement made, was also found to  be so.  There was no other evidence on record on the basis of which the  conviction of the appellant could be sustained.          In this case, however, not only an extra judicial confession was made

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by the appellant before PW-10, the same was also made before PW-11.  The  jewellery which had been put on by the deceased was produced by the  appellant.  Only upon the disclosure made by the appellant that the dead  body had been thrown in the canal, a search was made and it was found.   The dead body was also identified to be that of the deceased.  

27.     In Vinayak Shivajirao Pol  vs.  State of Mahasrashtra : (1998) 2 SCC  233 this Court opined :- "10. There is no ambiguity in the above statement. It  shows that the appellant killed his wife. Both the Courts  have found that the statement was made voluntarily by  the appellant. The sequence of events shows that at the  time when the appellant made a confession, neither he  nor the military authorities had any knowledge of the  recovery of the headless trunk of the appellant’s wife.  The military authorities were in no way biased or  inimical to the appellant. Nothing is brought out in the  evidence in respect of the military officers which may  indicate that they had a motive for attributing an  untruthful statement to the appellant. The statement has  been proved by one of the officers to whom it was made.  The said officer has been examined as PW 32. A perusal  of the evidence shows that the vague plea raised by the  appellant that the statement was obtained from him on  inducement and promise is not true. In such  circumstances it is open to the Court to rest its conclusion  on the basis of such statement and no corroboration is  necessary."

28.     We have been taken through the evidence of PW-10 and PW-18.   We  have no reason to differ with the findings of the learned trial Judge as also  the High Court that the extra judicial confession was voluntary or truthful.   We, therefore, are of the opinion that no case has been made out for  interference with the impugned judgment.  The appeal fails and is dismissed  accordingly.