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PETITIONER: STATE OF TAMIL NADU

       Vs.

RESPONDENT: P. MUNIAPPAN ETC.

DATE OF JUDGMENT:       02/12/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 2ND DAY OF DECEMBER, 1997 Present:               Hon’ble Mr. Justice M.M. Punchhi               Hon’ble Mr. Justice M. Srinivasan T.S. Arunchalam,  Sr. Adv.,  V.G. Pragasam, S. Balakrishnan, (Ms.  Revathy   Raghavan)  Adv.   for  R.N.   Keshwani,   A. Mariputham, Adv.  for M/s.  Arputham Aruna & Co. K.N. Basha, P.N. Ramalingam,  V. Balaji  and A.T.M.  Sampath, K.N. Gopal Singh, Advs. with him for the appearing Parties.                       J U D G M E N T      The following Judgment of the Court was delivered: M. SRINIVASAN, J.      The appeal  is by  the  State  Government  against  the judgment of  the High  Court of Madras setting aside that of the Additional  principal  Sessions  Judge,  Coimbatore  and acquitting the  respondent of  the charges under section 302 and 201 IPC. The Special Leave petition was filed earlier by the brother  of  the  deceased  Nagammal  against  the  same judgment of  the High  Court. At the  granting permission to petitioner to  file the  S.L.P., notice  was ordered by this Court in  the S.I.P.  and later  directed to be tagged on to the above appeal. 2.   The respondent  was working  as Assistant  Professor of Mathematics in  Udumalpet College.  He married  Nagammal  on 2.3.76. After  marriage, he  got transferred to a college in Tiruppur. Nagammal became an Assistant Professor in Vellalar Collage, Erode.      Though the  respondent  was  highly  educated,  he  was insisting on  her resigning  her job  and living with him as house wife.  Besides, he  along with  his parents was making repeated  demands  for  dowry  in  the  shape  of  household articles. As regards their marriage life, the High Court has observed thus:      It is  true tat  the family life of      Nagammal proved  to be  miserable .      From  the   beginning   there   was      misunderstanding between the couple      and  only  for  short  intermittent      periods they  had  lived  together.      Besides   the   jewels   and   cash

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    received by  him  at  the  time  of      marriage, the  appellant  had  been      insisting  that   his  wife  should      bring household  articles necessary      to   set    up   a    new    family      establishment at Tirupur. While the      parents  of   the  appellant   were      adamant that  her daughter  in  law      should  resign  her  job,  Nagammal      very much  liked to  be  a  working      woman.  It  is  the  appellant  who      initiated    divorce    proceedings      against the  deceased. A reading of      Ex.  P-2   the  counter   filed  by      Nagammal would go to show that even      though she was not prepared to quit      the job,  she was  equally  anxious      that  she   should  live  with  her      husband happily.  Her statement  in      the counter  that she  had not done      any wrong  to her  husband and that      she begs  him to forget and forgive      if he had enter tained or found any      mistake committed  by  her  reveals      her state of mind." 3.   In the  petition for  divorce referred  to by  the High Court in  the above  passage, the respondent had stated that his wife  left his  house on  8.7.76  with  her  father  and alleged that on 14.8.76, her father and brothers came to his house along  with her  and by  using force and violence took away with  them jewels  worth about  35 1/2 sovereigns after attacking him  and his  mother. He introduced an innuendo in Para 4 of his petition as follows:      "  The   marriage   for   her   was      obviously intended  to  enable  the      respondent to go about with greater      freedom as a married women."      That discloses the ’cynic’ in him. 4.   That  petition   was  filed  on  24.11.1978.  His  wife Nagammal filed her counter on 12.3.79 expressing her anxiety to live  with him.  The matter was being adjourned number of times on  the ground  that both  counsel were  not ready. On 21.6.82, the  court after  noticing that both sides were not ready adjourned  it finally to 8.7.82. On the latter date it was represented to the Court that the respondent therein had committed suicide.  However, the  petition was dismissed for default  as   the  petitioner  therein  was  absent.  It  is necessary to note that though the respondent claimed to have taken her  back and started living with her from 12.9.81, he did not  withdraw the petition. According to PW7, he refused to withdraw the petition. This shows that the respondent had a motive for not withdrawing the petition. 5.   It is  in evidence  that though  the respondent and his wife resumed  their family  life in September 1981, they got separated again  in December  1981 and  joined  Sometime  in April. On 27.6.1982, they came to live in the house in which Nagammal was living till then with her friend and colleague, PW 6  Vasanthamani in  order to  enable the  couple to  live together, PW  6 shifted to another house nearby. Within five days thereafter Nagammal’s life not with an unnatural end. 6.   On 2.7.1982,  Nagammal’s body  was found  to be hanging from the  roof of  her kitchen.  The High  Court has given a clear picture of what happened from 1.7.82 till the  conclusion of  the post  mortem in  the  following words: .1m16.

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    "On 1.7.1982 Thursday Nagammal came      to  the  colleague  wearing  a  new      yellow  sari   and  jacket.   PW  2      Ponnathal  was   a  co-demonstrator      with Nagammal  in  Tirupur  Women’s      College. She  and PW6  Vasanthamani      asked her  why she  was wearing new      sari  on   that  day   while  t  is      customery to  wear new clothes only      on  Fridays.   Nagammal  told   her      friend   that   her   husband   had      presented  the   sari  and   jacket      commemorating her  joining Vellalar      College on  1.7.19976. Now  he  had      changed very  much and even blessed      her for happy life. she was wearing      a new  sari on  that day as per the      desire of her husband. Nagammal was      very happy  and in  the evening she      returned home from the college with      PW-6 Vasanthamani  did  not  notice      any injury on her face.      At about  6.00 PM  on 1.7.1982, PW6      Vasanthamani  left   her  house  on      account of  some Personal  work and      returned  at  about  8.00  PM.  She      found that doors and windows of the      portion where nagammal was residing      were closed  from inside. There was      no light. She did not call Nagammal      because  after   a  long  time  the      appellant had come to live with his      wife on that day.      PW 11  Kandasamy is  the next  door      neighbour of Nagammal. On 1.7.1982,      after attending  a marriage  he and      his wife  Renuka came back to their      house at  about to  .30 PM or 11.00      PM.  At   that  time   nobody   was      sleeping on  the pial of Nagammal’s      house. PW  10 Tirupathi  is also  a      resident   of   Ramasamy   Mudaliar      compound. On  that night he went to      a late  show movie  and returned to      the house.  Since the  door of  the      compound wall  was locked he rang p      the call  bell  and  the  appellant      opened the door. When he wen to his      portion this witness found that the      appellant took  his bed on the pial      of the  house where he was residing      with Nagammal.      On the  morning of 2.7.1982 all the      residents  of   Ramasamy   Mudaliar      Compound  purchased  their  morning      mild as usual. At about 6.30 AM the      wife of  PW 11  Kandasamy  informed      her husband  that Nagammal  did not      come out  of her  house to purchase      milk even  though milkman  flew his      horn. when PW 11 Kandasamy came out      of the house he found the appellant      was lying in the pial of his house.      When  he   asked  him  why  he  was      sleeping  outside,   the  appellant

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    told hi  that because  his wife was      having her  menstrual period he had      taken his  bed  outside.  He  added      that even though he had knocked the      door Nagammal  did not  turn up. PW      11 Kandaswamy  told  the  appellant      that he  could have slept in a room      inside  the  house.  The  appellant      replied that Nagammal had asked him      to sleep  replied that nagammal had      asked him  to sleep  outside. PW  6      Vasanthamani  also   noticed   that      nagammal did not turn up to get the      mild till  6.00 AM. When she wanted      to enquire  she found the appellant      was standing  outside the  door  of      his  house.   One  door  alone  was      opened. PW  6  Vasanthamani  called      Nagammal through  that  window  but      there was no reply. There after the      residents of that compound gathered      there and  one Renganathan  climbed      the roof,  removed  the  tiles  and      found that Nagammal was hanging.      PW 8 Chanasekhar an is an Assistant      Professor  of   Chikkanna   College      firupur  where   the  appellant  is      working. On  2.7.1982 at about 7.00      AM   the   appellant   came   there      weeping. He  told him that his wife      had died  and asked  him to  inform      this  to  their  colleagues.  PW  8      Chanasekharan went  to the house or      PW 5  Ramanujulu another  professor      of the  same College  and passed on      the message.      On  2.7.1982   at  10.00   AM   the      appellant  came  to  Tirupur  South      Police Station  and lodged Ex. p-44      complaint about  the death  of  his      wife. PW  21 Sub-Inspector received      and recorded it as Crime No. 374 of      1982 of  his station  under Section      174 of the Criminal procedure Code.      He prepared  Ex. p-45  the  printed      copy of the FIR. Then he reached PW      13 Rajalakshmi,  Principal  of  the      woman’s College  where Nagammal was      working   were    present.   PW   3      Subramaniam the  Principal  of  the      Chikkana College  was  also  there.      The front  door of  the  house  was      found bolted from inside. PW 21 Sub      Inspector  kicked   the  door   and      pushed it with his Inspector kicked      the door  and pushed  it  with  his      hands. M.D.3  the latch of the bolt      from inside gave way and fell down.      PW 2  Ponnathal  also  went  inside      along with PW 21 Sub Inspector. She      found Nagammal  hanging in  a rope.      PW 21 Sub Inspector prepared Ex. P.      47 observation mahazar and EX.P. 89      rough  sketch   of  the  place.  He      conducted request  to 1.30  PM. EX.

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    p.46 is  the inquest  report. He as      examined the  appellant and  others      at the  time of  inquest.  He  also      recovered M.D.4  Rope, M.D.  2 Ball      Point Pen  and M.D.3  Latch of  the      Lock and  Ex.P. 13  a suicide  note      dated 1.7.1982  purported  to  have      been  written   by  Nagammal  under      Nagammal  from   that  place  under      Ex.p.90 mahazar. Ex. p 13 was shown      to  PW   3  principal   and  PW  13      Principal.  He   also  seized   the      jewels from  the body  of  Nagammal      under Ex. P.91 mahazar. On the same      day he had examined PW 6, PW 10 and      PW 11.      Thereafter PW 21 Sub Inspector sent      the body for post mortem through PW      20   Constable    with   Ex.   P.74      requisition and  Ex.  P.77  Printed      form.  PW   16   Dr.   Vijyalakshmi      commenced the  post mortem  in  the      government  Headquarters  hospital,      Tirupur at  3.30 PM on 2.7.1982 she      found that rigor mortis was present      in both lower limbs and passed away      in  both   upper  limbs.   It   was      moderately  nourished   body.   She      found these ante-mortem injuries on      the body.      1) Burnt area of the skin about 1/2      cm. in  diameter on  the bridge  of      the nose. Skin charred.      2) burnt area of the skin about 1/2      cm in diameter on the left temporat      region and left cheek present. Skin      charred.      3) Old  scar  about  2  cm  on  the      medical aspect of the left ankle.      4) Abrasion j cm x 1/2 cm with scab      formation on the left knee.      5)  A   ligature  mark   which  was      superficial about  2 cm in breadth,      well defined,  was seen  above  the      thyroid cartilage running obliquely      upwards  interrupted  at  the  back      reaching mastoid process behind the      ears. knot  mark was  seen  on  the      right side  of the  neck.  On  dis-      section,  the  subcutaneous  tissue      under the  ligature mark  was  pale      and   glistening.    Rigor   mortis      present in  both lower limbs. Rigor      mortis passed  off  in  both  upper      limbs.  Eye   lids  were  partially      opened  on   both   sides.   Tongue      portruded   between    the   teeth.      Dribbling of  Saliva from the right      angle of  the  mouth  was  present.      Jaws  were   clenched.  Teeth  were      complete. Abdomen distended.  There      was  no  fracture  of  ribs.  Heart      weight 300  grams  Congested  Hyoid      bone intact.  Stomach contained 150      grams of digested food particulars.

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    Liver 1400  grams congested. Spleen      150 grams  congested.  Kidneys  150      grams  each   congested.  Intestine      distended with  gas. Bladder empty,      Uterus  normal.  Weight  70  grams.      Ovaries   normal    scalip   -   no      fracture. Brain weight 1300 grams.-      Pale. The viscere was preserved and      sent  for   chemical  analysis.  No      poison was  detected in the viscera      sent. On  reviewing the post mortem      findings  and  Chemical  Examiner’s      report, she  gave the  opinion that      the deceased  would appear  to have      died as  asphyxia due  to  suicidal      hanging   between   11.30   PM   of      1.7.1982 and  3.30 AM  of 2.7.1982.      Ex.  P.   48  is  the  post  mortem      certificate issued  by her  Ex.p.51      is the  Chemical examiner’s report.      After the  receipt of  the same she      has  given  her  final  opinion  in      Ex.P. 75  and 876  (sic)  that  the      deceased  has   died  of   hanging.      According to  her  external  injury      Nos. 1  and 2  in Ex. 48 could have      been caused  by any hot object like      cigarete with  flame. There  is  no      resistinging injuries  around those      two injuries." 7.   In the  first instance,  the case  was registered under Section 174  Cr. P.C.  and investigated. Later on the orders of  D.I.G.,   C.I.D.  Madras   the   CBCID   took   up   the investigation. After  examination of  witnesses the  charges were got altered to Sec. 306 IPC and 327 IPC. On 4.7.83, the respondent was arrested. After examining some more witnesses the charges  were altered to Section 302 IPC and 201 IPC. On completion of  investigation  a  chargesheet  was  filed  on 6.1.84.   The respondent  denied the charge and claimed that she committed  suicide. The  Court  of  Sessions  found  him guilty on  both counts  and convicted  and sentenced  him to imprisonment for  life under  Section 302  IPC and  one year rigorous imprisonment  and fine  of Rs.  100/- under Section 201 IPC.  On appeal,  the  High  Court  has  set  aside  the judgment  and   order  of   the  trial   and  acquitted  the respondent. 8.   As stated  by the  High Court,  the case  depends  upon circumstantial evidence  only. We  have already  pointed out that the  respondent was never interested in living with his wife. He  was not  only making demands for various household things but  also insisting  on resigning  her job.  There is ample evidence  to show that he was treating her cruelly. PW 6, PW  7 and  PW 9  have deposed  that  the  respondent  was demanding the  consent of Nagammal either for divorce or for his second  marriage. PW  2 and  PW 12  have stated that the beat her  in public  in front  of lip Top Lodge and Jeevabai School one  day when  she was going to the College. PW 6 and PW 12  have stated  that nagammal  had told  them about  his drinking and  compelling her  to drink  against her will. In this  regard,   we  are  eschewing  from  consideration  the evidence of  PW 1.  PW 9  is a  friend of  the  respondent’s mother told him that Nagammal should give consent for second marriage of  the respondent.  Nothing  has  been  placed  on record to discredit the aforesaid witnesses. The trial court has accepted  their evidence  and the  High  Court  has  not

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disbelieved them. 9.   Apart from  the oral  evidence,  there  is  documentary evidence in  the shape  of letters  written by Nagammal, the genuineness  of   which  cannot  be  assailed.  We  are  not referring here to the doubtful letters Exs. P 27, P 29, P30, P 31  and p  32 written to PW 7 and Ex.P. 38 written to PW 9 whose  genuineness   has  not  been  challenged  bear  ample testimony to the extent to which the respondent was prepared to go  to make  her life  miserable. Ex. P 27 shows that the respondent had taken her signatures on blank papers. It also shows that  he viewed  her with  suspicion when she returned one day late from the college. In spite of the fact that all the jewels  and F.D.  receipts  were  entrusted  to  him  in October, 1981,  nagammal was  sent  to  her  parents’  house shortly thereafter.  All the  above evidence  lands  to  the conclusion that  the respondent  did not  at any time have a genuine desire to live with Nagammal. 10.  learned counsel for the respondent has argued before us that the  marriage was  a happy  one and  there was no hitch between nagammal  and the  respondent. According  to him her parents wanted  to enjoy  her earnings and book all steps to keep her  away from  her  husband.  The  contention  is  not acceptable. It  goes  against  the  teeth  of  the  evidence referred  to  by  the  High  Court  which  we  have  already extracted.  We   have  no  doubt  that  the  respondent  was responsible  for   Nagammal’s  suffering.   it  is  in  this background the  evidence relating  to her  death  should  be appreciated. 11.  There is  no dispute  that the  death  of  Nagammal  is unnatural. Admittedly,  the respondent  was the  only  other occupant in the house where her death occurred in the night. Admittedly, the respondent had supper with her in the night. According to  Ex.p-44, he  slept in  the outside Verandah as there was  no ventilation inside (Vide Ex. P. 44). In Ex. p- 66,  he has stated that nagammal wanted him to sleep outside as she  wanted to wake up at 4.30 AM next morning, clean the house, wash  the clothes  and go to temple and that he could sleep undisturbed  till 7.00 AM. The third version is in the written statement  filed by  him under Section 313 Cr. P.C.. It is  stated thus: "After husband and wife relations 1 used to come  outside and  sleep for want of air and my wife used to sleep  inside by bolting the door from inside." PW 11 has deposed that the respondent told him to because Nagammal was in her  periods she  told him  to sleep outside. In the oral examination under  Section 313  Cr. P.C. a specific question was put  to him  that he told PW 11 that Nagammal wanted him to sleep  outside. The respondent simply denied it. Thus the respondent has given different explanations for his sleeping outside separately within a few days after joining his wife. 12.  The  respondent   has  given   a  reason  for  Nagammal committing suicide.  According to  him she  was having acute stomach pain  during her  period  and  during  coitus.  This cannot be  true on  the face  of it  because of  her written statement under Section 313 Cr. P.C. There is no evidence to support his version excepting his own statement. Reliance is placed on  Ex. p.  35 issued  by one  Dr. S. Balakrishnan on 3.6.1988 that  she had ’pelvic infection’ since the previous day. The  doctor has  not been  examined . The colleagues of Nagammal have not heard of her stomach pain. The post mortem examination of  the body  of the  deceased has not disclosed any infection.  According to P-35, the doctor devised her to take rest for three weeks only. there is no evidence to show that she  was taking  any medicine.  In any  event, there is absolutely no  evidence to  show that Nagammal was suffering from such  acute pain  or far  that matter any other ailment

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which could goad her to commit suicide. 13.  According to  the High  Court, the  mental and physical torture endured by Nagammal in the hands of her husband made her desperate  to put an end to her life. The said inference is wholly  unreasonable and  unwarranted. The High Court has after referring  to the circumstances that Nagammal accepted a lower  post after  resigning a  higher post  in  order  to facilitate her living with her husband and that the evidence of PWs  2 and  6 proved  that Nagammal  was  very  happy  on 1.7.1982 observed:  "But we  do  not  know  what  transpired between the husband and wife after 6.00 PM on that day". The High Court  has compltely over looked the letters written by Nagammal which  prove clearly  that Nagammal  was not such a weak-minded person to commit suicide on a sudden provocation of which we ave no evidence whatever. The evidence makes out clearly that Nagammal had a strong mental frame and was keen on living  with her husband. The sequence of events does not lead to  any inference  that something  happened during  the night which made her commit suicide immediately. 14.  If it is a case of suicide, there is no explanation for burn injuries.  The High  Court has  held that  she chose to terminate her  life of  her own accord perhaps on account of the torture  she had  undergone in  the hands  of her  cruel husband’. Does  the High  Court refer here to torture before 27.6.1982. or  on 1.7.1982?  There  is  no  doubt  that  the torture or  the conduct of the respondent prior to 27.6.1982 could not  have persuaded  Nagammal to  commit suicide. Thus the cause of her death could have sprung up only on 1.7.1982 night. According  to the  respondent he  had coitus with her and she  wanted to  get up  early in  the morning, clean the house and  go to  the temple. Obviously she had no reason to commit suicide.  it is  in that  background,  the  following circumstances in the case should be considered: I)   The respondent  had strong motive to put her out of the way before the petition for divorce fixed for 8..7.2 finally was taken  up for  hearing.  The  respondent  had  developed hatred towards  her and  drove her  out of  the house  (vide Ex.p-2 Para  5). He  refused to  withdraw the  petition  for divorce though  she came to live with him. he was repeatedly insisting upon  her  consent  for  his  second  marriage  of divorce. II)  He was  the only  other occupant  of the house in which she met with the unnatural end. III) His Varied explanations for sleeping separately outside the house are totally unbelievable. IV)  The burn  injuries on  the body  of Nagammal which were not in  existence on the evening of 1.7.1982. There being no resist  injuries   the  only   inference  possible   in  the circumstances is  that the  respondent caused them before or after her death. V)   The dishevelled  hair and  the disturbed dress with the jacket and  bra being  open show  that there  was a struggle before her  death. The  witnesses  who  saw  her  body  have deposed that  the saree  was just  put around  the body. Her feet were  touching the  floor. There is no evidence to show that the  cardboard box  alleged to have been by the side of the body could have borne her weight. VI)  The conduct  of the respondent in rushing to the police station without  going inside  the  house  and  finding  out whether she was dead is also relevant. VII) The "thali’(mangalsutra)  was not  on the  neck of  the deceased but it was with the respondent.      The above  circumstances lead  to only  one conclusion, that is,  the respondent  is guilty.  We have  taken care to omit disputed  pieces of  evidence. Unfortunately,  the High

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Court has  failed to  consider the  above evidence on record before upsetting  the judgment  of the  trial court and thus its judgment is vitiated. 15.  The High  Court has  observed that  when the doctor has expressed two  views, the  one that  is  favourable  to  the accused  must   be  taken   into  account.   As  a   general proposition, it  may be true. But medical evidence cannot be considered in isolation. After all, medical opinion is based on inferences drawn from various facts present. It is not as if homicide  is completely  ruled out by the doctors. Hence, their evidence  must be  taken in  conjunction with  all the circumstantial evidence on record. The entire circumstantial evidence points  to homicide  only, and the medical evidence is not to the contrary. Thus we have no doubt that the death of Nagammal was homicidal only. 16.  The trial  court has  referred to  Ex.P-13, the slip of paper purporting to be a ’suicide note’ and held that it was fabricated by  the accused.  The High  court has opined that the read  note has  been suppressed  and  another  has  been substituted in  its place  after C.B.C.I.D. Police came into the picture.  There is  no support  in the evidence for this opinion is  based on the statement  of PW 1 that the writing in the note was in red ink and the signature was in blue ink but in  Ex.p 13  the writing as well as the signature are in blue ink.  PW 1  has stated that the Sub-Inspector of police refused to  show the  note to him when he asked for it. PW 1 claims to  have been told by his father that the writing was in light red colour ink and signature was in blue ink. Hence his evidence  is of  no use. If the original note was in two different inks,  that itself could be a circumstance against the accused  as it  would show  that the  writing was by one person and  the signature was by another. On the other hand, if the writing and the signature were by the same person but in two  different inks  it would  mean that  the writing and signature were at a different times. There was only one ball point pen at the spot. We have referred to the above aspects only to  show that  a definite  conclusion that  there was a substitution of  the note  is not  possible. However, we are prepared to  omit Ex.  P-13 completely from consideration in this case.  The other  evidence on  record is  sufficient to prove the quilt of the accused on both counts 17. As we have rested our  conclusion on  the evidence  on  record,  it  is unnecessary to  refer to S. 113-A of the Evidence Act or the judgments in Gurbachan Singh Versus Satpal singh and others, (1990) 1  S.C.C 445  and Lakhjit  Singh and  Another  Versus State of Punjab 1994 Supp. 1 S.C.C. 173 relied on by learned counsel for  the appellant. Nor is it necessary to advert to the judgments  in Sangarbonia  Sreenu Versus  State of  A.P. A.I.R. 1997  S.C. 3233 and State of Maharashtra Versus Ashok chotalal Shukla  1997 S.C.C.  (Cr l.)  1186 cited by learned counsel for the respondent. 18.  Thus we  hold that  the judgment and order of the trial court are  correct. The  appeal is  allowed. The judgment of the High  Court is  set aside.  He conviction  and  sentence imposed by  the trial  court are  restored.  The bail stands cancelled and  respondent shall  be taken  into custody  for forthwith.