CRL A/427/2002 of DHANDAPANI Vs STATE BY INSPECTOR OF POLICE on 28 December 2004

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 28.12.2004

CORAM:

THE HONOURABLE MR.JUSTICE V.KANAGARAJANDTHE HONOURABLE MR.JUSTICE T.V.MASILAMANI

CRIMINAL APPEAL No.427 OF 2002

Dhandapani..Appellant/1[st] Accused v.STATE:by The Inspector of PoliceAlangiam Police StationErode District. ..Respondent/Complainant Criminal Appeal preferred under Section 374(2) Cr.P.C. for therelief as stated therein.* * *For appellant : Mr.V.K.Muthusamy,Senior Counselfor Mr.M.M.SundareshFor respondent : Mr.E.Raja APP.* * *JUDGMENTV.KANAGARAJ, J.==============

This Criminal Appeal is directed against the conviction andsentence passed by the Court of Principal Sessions Judge, Erode asper his Judgment dated 19.02.2002 in S.C.No.145 of 2001 therebyconvicting the appellant-A1 for the commission of offences underSections 498-A, 302 & 201 IPC and under Section 4 of DowryProhibition Act and sentencing him respectively, to undergo R.I. forthree years, life imprisonment, R.I. for five years and R.I. forsix months and to pay a fine of Rs.2000/- in default to undergo RIfor two months further ordering these sentences to run concurrently.

2. On a perusal of the materials placed on record and uponhearing the learned counsel for the appellant and the learnedAdditional Public Prosecutor representing the State, it comes to be

known that the appellant is the first accused and he has beencharged for the offences punishable under Sections 498-A,302 & 201IPC and under section 4 of Dowry Prohibition Act.

3. The case of the prosecution is that A.1 is the son of A.2and A.3 and they were residing at Kuttupulli Thottam, Aalangayam.The deceased Selvi was the wife of Appellant/A1 and that theaccused/appellant joining hands with his parents A.2 and A.3,harassed the deceased Selvi by demanding dowry on various occasions;that one month prior to the date of occurrence, the accused pesteredthe victim Selvi to bring a sum of Rs.50,000/- from her father forconstructing their house and as the victim could not bring the dowryamount demanded by the accused, on 31.10.1999 at about 11.00 am. intheir newly constructed house at Kuttupulli Thottam, the accuseddecided to kill the victim Selvi and had beaten her severely withforce, as a result of which, she died; that in order to screen thedeath of the deceased Selvi, the accused poured kerosene on thevictim Selvi and closed the door, tied the same with iron chain andlocked the door from outside and lighted a match stick and threw thesame through the window which was kept open, and set the victim onfire and hence the charges against all the three accused forcommission of offences punishable under Sections 498-A, 302 and 201IPC and u/sec.4 of the Dowry Prohibition Act.

4. Thereupon, the Court of Principal Sessions Judge, Erode,having framed the above charges against the accused/appellant andtwo other accused and since they pleaded not guilty of the offencescharged, conducted the trial into the charges with due opportunityfor the prosecution and defence as well during which, on the part ofthe prosecution, whose burden it was to prove the charges beyond allreasonable doubts, as warranted under law, 19 witnesses have beenexamined as P.Ws.1 to 19 for oral evidence and marked 21 documentsas Exs.P.1 to P.21 for documentary evidence further exhibiting 20material objects as M.Os.1 to 20. The defence evidence placed onrecord is nil.

5. In consideration of the above evidence placed on record,the trial Court found the appellant/A.1 guilty of the offencecharged under Sections 498-A, 302 & 201 IPC and under Section 4 ofDowry Prohibition Act and sentenced him respectively, to undergo thepunishments as extracted supra further registering an acquittaljudgment so far as the second and third accused before the trialCourt are concerned. It is only challenging the said conviction andsentences, the appellant/A.1 has come forward to prefer the abovecriminal Appeal.

6. Heard the learned counsel appearing on behalf of theappellant/convict, and the learned Additional Public Prosecutorappearing contra.

7. During arguments, the learned senior counsel appearing onbehalf of the appellant/convict would submit that after holding theinquest, as it is reflected in postmortem requisition Ex.P.3 dated31.10.1999, the suicidal case was converted into a case of murder;that the post mortem certificate of the deceased Selvi in Ex.P.2,would reveal that the doctor who conducted autopsy offered hisopinion under Ex.P.4 to the effect that 'the deceased appeared tohave died of asphyxia and the burns looking like post mortem burns'.

8. The learned senior counsel would further submit that on thestrength of extra judicial confession, the trial Court has arrivedat the conclusion that the commission of offence is one punishableunder Section 302 IPC but, the case is purely a suicidal one.Learned senior counsel would also submit that the extra judicialconfession is an after-thought, given belatedly.

9. In support of his arguments, the learned senior counselappearing for the appellant would rely on the following extractsfrom the text books:

(i) Page 322 of the H.W.V.Cox, Medical Jurisprudence andToxicology, wherein the Burns Inflicted Before or after Death isdealt with.

(ii) Page 212 (a) of the Modi's Medical Jurisprudence and Toxicology ;

(iii) Police: The Investigation of Violence : (relevantportions are at pages 158, 160 and 162)

10. From H.W.V.Cox Medical Jurisprudence and Toxicology, therelevant portion relied on by the learned senior counsel for theappellant is as under:

"Were the Burns Inflicted Before or after Death? --This primary decision is of great forensic importance,because of the possibility of the disposal of acriminal death in a fire. The differentiation betweenante-mortem and post-mortem burns must be attempted inevery examination of a fatal burning. Although thismay be difficult or even impossible in some cases, itmust be uppermost in the mind of the medical examiner.The most important criterion is the presence orabsence of a vital reaction at the margin of the burns.Where par of the body surface is burnt during life,there will almost inevitably be a zone of hyperaemia atthe edge of the burn area, except when death followsvery soon afterwards. While the person is still alive,there may be reddening of the skin even beyond thiszone, but this may fade after death leaving only themarginal zone of erythema at the edge of the burn. Thismay vary in width but is usually a centimetre or so unless death supervened very soon. It is due to oedemaof the tissues and capillary dilatation and merges withthe edge of the burn which may show blistering orcharring. Unfortunately, where death occurs veryrapidly (within a few moments) then the erythematousmargin of an ante-mortem burn may be indistinct or evenabsent. However, wherever survival persists for morethan a few moments it is almost invariably found.

The presence of a vital reaction is absoluteproof that the person was alive during the fire as thiscannot be simulated in a postmortem burn. Blisteringand reddening of the actual burned area can occur in apostmortem burn but not the peripheral zone of vitalreaction.

Facts

Difficulty arises where the body is completelycovered with burns so that no unburnt skin remains todisplay a vital reaction. Where the body is actuallycharred or incinerated then naturally this aspect ofdetermining the time of the burn is impossible."

"The next important matter is the presence of carbonmonoxide in the body, which may be obvious evenexternally by the pinkness of the post-mortemhypostasis. In many fire victims, the first incisionat autopsy reveals a cherry-pink colour of the bloodand muscles which can be confirmed by simplespectroscopicexaminationtobeduetocarboxyhaemoglobin. Even in rapid fires such as inautomobiles, considerable quantities of carbonmonoxide may be released and be respired even thoughlife only survives for a moment or two.

However, great caution must be used ininterpreting carboxyhaemoglobin in fire victims. Thefollowing two rules are of first importance:-(a) If the tissues of a deceased victim contain asignificant quantity of carbon monoxide (say more than10% saturation) then the victim must have been aliveduring the fire.

(b) However, if the tissues contain no carbonmonoxide, this does not mean that he must have beendead during the fire.

This latter statement is of great importance, asseveral cases have occurred in which false accusationsof murder have been made against persons where allegedvictims have been found dead in a fire with no carbonmonoxide in their body. It is a confirmed fact thatundoubted cases of ante-mortem fatal burns have nocarbon monoxide in their blood-streams, due to avariety of reasons such as low production of carbonmonoxide, convection currents, rapid death, and another factors which make it quite unsafe to use the absenceof carbon monoxide as a criterion of death before thefire occurred. However, the converse can be acceptedwith confidence, that is, the presence of carbonmonoxide means that the person was alive during thefire".

11. From MODI's Medical Jurisprudence and Toxicology, therelevant portion pointed out is extracted:

"Clinical Features:

Clinical features are divided into three stages:the stage of inspiratory dyspnoea; the stage of expiratory dyspnoea and the stage of exhaustion and respiratory failure.

In the first stage, the face nears an anxious lookand the patient complains of heaviness in the head andringing in the ears. The lips are livid, and the eyesprominent. The respiration becomes deep, hurried andlaboured, the extraordinary muscles of respirationbeing called into play. The blood pressure rises andthe pulse becomes slow. The consciousness is usuallylost at the end of this stage, which lasts for oneminute.

In the second stage, because of retention ofcarbon dioxide, which falls as the blood lactatecontent increases and lack of oxygen, the respirationis more laboured and spasmodic and there may beclouding of consciousness, convulsions, and evenrelaxation of sphincters. Owing to the venous andcapillary stagnation, the face and the hands are deeplycongested and cyanosed and there is considerableexudation of fluid in the mouth and the lungs due toincreased capillary permeability. The fluid may even beblood tinged in the terminal stage. Tongue injured bythe teeth is seen protruding. During this stage, whichlasts one to two minutes, effects of sympathetic andpara sympathetic stimulation manifest, for example,increased secretion of saliva, increased heart rate andincreased gastrointestinal mobility, incontenence ofbowls and bladder etc.In the third stage, (of two to three minutesduration), the respiratory and the other nervouscentres are paralysed, due to cerebral anoxia, whichdamages the brain permanently. The muscles becomeflaccid, there is complete insensibility, the reflexesare lost and the pupils are widely dilated. The bloodpressure falls. Prolonged sighing inspirations occurat longer and longer intervals until they ceasealtogether and death ensues. The pulse is scarcely perceptible but the heart may continue to beat for tento fifteen minutes after respiration have quite ceased.The three stages last for about three to fiveminutes before death takes place. They may beprolonged for two or three times as long.Occasionally, asphyxia may bring about death almostinstantly. Artificial respiration, if appliedimmediately, may revive the heart and reverse thevicious symptoms.

(a) External

The face is either calm and pale in slow asphyxiaor distorted, congested and cyanosed in cases ofsudden asphyxia. The lips and nails are livid.Cadaveric lividity is more marked and best seen withinfew hours of death. The tongue is protruded in mostcases and the frothy and bloody mucus comes from themouth and nostrils. Rigor mortis is usually slow tocommence,but may be rapid in some cases.

(b) Internal.

The mucous membrane of the trachea and the larynxis cinnabar-red due to its injection and containsfroth. The lungs are dark and purple in colour andgorged with dark venous blood. On being cut, they exudefrothy, dark, blood stained fluid. The air-cells aredistended or even ruptured due to emphysema. The rightcavity of the heart is full containing dark coloured,imperfectly clotted blood, and so are the pulmonaryartery and the venae cavae. The left cavity, the aortaand the pulmonary veins are empty. In many cases, bothsides of the heart are found to be full. If examinedsoon after death but after rigor mortis has set in, theheart is found contracted and empty or the tension inthe abdomen presses on the inferior vena cava anddrives blood up into the heart. Similarly, the lungsare found heavier with the blood collected in thedependent parts if examined sometime after death, orthe tension in the abdomen or contraction of the heartmuscle will drive more blood into the lungs,irrespective of the cause of death.The brain is congested, but not so much as indeath from coma. The abdominal organs are foundcongested. Numerous small petechial haemorrhages orecchymoses known as Tardieu Spots are seen under theserous membranes of various organs due to rupture ofthe capillaries caused by increased pressure in them.These are usually round, dark and well-defined, varyingin size from a pin's head to a small lentil. They arefound under the visceral pleurae, pericardium, endocardium, thymus, meninges of the brain and thecord, conjunctivae, epiglottis and even under the skinof the face, neck and eyelids. They are sometimes seenin deaths occurring from scurvy, pupura, haemophilia,bacterial endocarditis or coronary thrombosis. Thesemust be distinguished from small postmortemhaemorrhages in the conjunctivae or the skin ofdependent parts due to gravity; usually they are morediffuse and even larger".

12. So far as the book 'Police : The Investigation of Violence'is concerned, the relevant portions are extracted below:

"Suspecious injuries: Persons who are alive at the timeof exposure to fire are certain to inhale fumes thatendanger life,for not only is the vital oxygen that isneeded to maintain life being consumed in the course ofcombustion, but a dangerous gas,carbon monoxide, isbeing generated -- whatever is burning. Occasionally,as when celluloid or X-ray films burn, fumes of nitricoxide are also generated. Most charred victims of firedie of asphyxia (from lack of well -oxy-generated air)and a high blood concentration of the fire-fume gascarbon monaxide--and it is comforting to know that,since a state of unconsciousness occurs at anysaturation of 40% or over,they are unlikely to haveexperienced the excruciating pain of the burns thatfollow.

Detection of carbon monoxide in the blood isabsolute proof that life was present at the time of thefire--that the victim was breathing. Indeed, if thefire was a slow smouldering or smoky one,soot particlesare also found in the nostrils, the throat and the airpassages, giving proof visible to even the tyro atautopsy. To these accustomed to carbon monoxideinhalation deaths, one other change is equally obvious.The blood in which carbon monoxide has accumulated isa characteristic cherry pink--a colour which shows inthe livid stains in the skin and in samples of bloodfrom any part of the body, especially when it isdiluted. A drop of blood, so diluted, can be comparedwith a similar specimen taken by pricking the finger ofany member of the investigating team.

When a fire is fierce from the start, therapid lowering of the oxygen is the more importantfactor in causing asphyxia, but a smouldering firewill cause more smoke and the incomplete combustionwill create more carbon monoxide. The blood saturationmay rise as high as 60% or more at death when a longperiod of exposure to a slow fire is responsible.

It is sometimes suggested also that burns to thelive body can be easily distinguished from those to thedead tissues, but this is not so. The live skinreddens and blisters on scorching, and the hairsshrivel and curl on burning. But so does the deadskin, and so do the hairs. Heat causes the cuticle towrinkle and blister, for the temperature can be highenough to "boil" the dead fluid in the skin; andadjacent blood vessels may expand from the heat, togive a very similar appearance to that when the tissuesare living. When charring follows from more severeburning, of course, the only proof life lies in thefinding of inhaled soot or absorbed carbon monoxide.Either is sounder proof than the skin changes.

Contraction: Penetrating heat may cook the muscles andcause them to shrink: the bulkier the muscle thegreater the shrinkage, so that the stronger flexors ofthe arms and thighs exercise the greater "pull". Thearms may flex, the hands clench and the thighs bend atthe hip and the knee causing the well-known"pugilistic" attitude--suggesting that the victim mighthave been putting up a fight at the time of death.

To make such an assumption can only reflect a lackof experience of fire injuries. This change can, ofcourse, take place whether the body is dead or alive,but in either case it must not be made a cause forsuspicion".

13. Learned Senior Counsel would then cite Section 113-B ofthe Indian Evidence Act wherein the presumption as to dowry death isdefined and it is relevant to extract the section: "Presumption as to Dowry Death: When the question iswhether a person has committed dowry death of a womanand it is shown that soon before her death such womanhas been subjected by such person to cruelty orharrasment for; or in connection with, any demand fordowry, the Court shall presume that such person hadcaused the dowry death.

Explanation: For the purpose of this Section "dowrydeath' shall have the same meaning as in Section 304BIPC.

14. Learned Senior Counsel would then cite three judgmentsreported in (i) 2004 SCC Criminal 1306 ( )

(ii) 1947 MWN Crl.45 (PULUKUIRI KOTTAYA AND OTHRS v. THE KING EMPEROR) and

(iii) ((2001) MLJ (Crl.) 422); in the first judgment cited above, it is held as follows:

"... one of the essential ingredients, amongst others,in both the provisions i.e. Sections 304-B (IPC) and113-B (Evidence Act) is that the woman concerned musthave been "soon before her death" subjected to crueltyor harassment "for, or in connection with, the demandfor dowry". There must be material to show that soonbefore her death, the victim was subjected to crueltyor harassment. The prosecution has to rule out thepossibility of a natural or accidental death so as tobring it within the purview of "death occurringotherwise than in normal circumstances". Theexpression "soon before" is very relevant where Section113-B of the Evidence Act and Section 304-B IPC arepressed into service. The prosecution is obliged toshow that soon before the occurrence, there was crueltyor harassment and only in that case, the aforesaidpresumption operates. Evidence in that regard has tobe led by the prosecution. "Soon before" is a relativeterm and it would depend upon the circumstances of eachcase and no straitjacket formala can be laid down as towhat would constitute a period of soon before theoccurrence. It would be hazardous to indicate anyfixed period and that brings in the importance of aproximity test both for the proof of an offence ofdowry death as well as for raising a presumption underSection 113-B. The expression "soon before her death"used in the substantive Section 304-B IPC and Section113-B of the Evidence Act is present with the idea ofproximity test. No definite period has been indicatedand the expression "soon before" is not defined. Thedetermination of the period which can come within theterm "soon before" is left to be determined by thecourts, depending upon the facts and circumstances ofeach case. Suffice, however, to indicate that theexpression "soon before" would normally imply that theinterval should not be much between the cruelty orharassment concerned and the death in question. Theremust be existence of a proximate and live link betweenthe effect of cruelty based on dowry demand and thedeath concerned. If alleged incident of crulety isremote in time and has become stale enough not todisturb mental equilibirum of the woman concerned, itwould be of no consequence."

15. In the Second Judgment cited above, the HonourablePrivy Council has held:" S.27 Evidence Act provides an exception to theprohibition imposed by the preceding section andenables certain statements made by a person in policecustody to be proved. The condition necessary to bring

the section into operation is that the discovery of afact in consequence of information received from aperson accused of any offence in the custody of apolice officer must be deposed to and thereupon so muchof the information as relates distinctly to the factthereby discovered may be proved. The extent of theinformation admissible must depend on the exact natureof the fact discovered to which such information isrequired to relate. On normal principles ofconstruction, the proviso to S.26 added by S.27 shouldnot be held to nullify the substance of the section.It is fallacious to treat the fact discovered withinthe section as equivalent to the object produced; thefact discovered embraces the place from which theobject is produced and the knowledge of the accused asto this; and the information given must relatedistinctly to this fact. Information as to past user,or the past history, of the object produced is notrelated to its discovery in the setting in which it isdiscovered. Any information which serves to connectthe object discovered with the offence charged is notadmissible under S.27. The difficulty however great ofproving that a fact discovered on information suppliedby the accused is a relevant fact can afford nojustification, for reading into S.27 something which isnot there and admitting in evidence a confession barredby S.26. Except in cases in which the possession orconcealment of an object constitutes the gist of theoffence charged, it can seldom happen that informationrelating to the discovery of a fact forms thefoundation of the prosecution case. It is only onelink in the chain of proof, and the other links must beforged in manner allowed by law."

16. In the third judgment cited by the learned senior counselfor the appellant, the honourable Apex Court has held:

"The postulates needed to establish an offence underSec.304-B IPC are: (1) Death of a wife should haveoccurred otherwise than under normal circumstanceswithin seven years of her marriage; (2) soon before herdeath she should have been subjected to cruelty orharassment by the accused in connection with any demandfor dowry. Now reading Sec.113-B of the Evidence Act,as a part of the said offence, the position is this: ifthe prosecution succeeds in showing that soon beforeher death she was subjected by him to cruelty orharassment for or in connection with any demand fordowry and that her death had occurred (within sevenyears of her marriage) otherwise than under normalcircumstances "the Court shall presume that such person had caused dowry death". However, it is open to theaccused to adduce such evidence for disproving the saidcompulsory presumption. If an accused was only askedto defend a charge under Sec.302 IPC and wasalternatively convicted under Sec.304-B IPC without anynotice to him, he is deprived of the opportunity todischarge the burden cast on him by law. In such asituation, if the trial Court finds that theprosecution has failed to make out the case underSec.302 IPC, but the offence under Section 304-B IPChas been made out, the Court has to call upon theaccused to enter on his defence in respect of the saidoffence. Without affording such an opportunity to theaccused, the conviction under Sec.304-B, IPC would leadto real and serious miscarriage of justice."

17. Per contra, the learned Additional Public Prosecutorappearing on behalf of the State would submit that both the accusedand the deceased Selvi had got married on their own accord, that is,without the consent of their parents which created some problemsamong herself and her in-laws; that soon after the receipt ofinformation about the murder, that had happened at the residence ofthe in-laws of the deceased Selvi, the kith and kin had rushed tothe spot where the accused/appellant and his parents were notavailable; P.W.5, the father of the deceased, P.W.6, her youngersister, P.Ws.7 and 8 some distant relatives of the deceased, are allresiding in and around the area where the occurrence took place;that with regard to Dowry harassment, the witnesses P.Ws.5 to 8adduced evidence about the prolonged torture meted out to thedeceased by the accused and his parents; P.W.8 would submit thatP.W.5, the father of the deceased borrowed a sum of Rs.10,000/-from him, specifically stating that the said sum was required forhis son-in-law for constructing a house; that with regard to dowryharassment, the witnesses spoke about the prolonged torture by theaccused and his parents. One month prior to the date of occurrence,the victim Selvi wrote a letter in Ex.P.6 to her father which itselfdiscloses the fact and circumstances of the case regarding theconditions that prevailed at the residence of her husband and thedowry torture given to her.

18. In consideration of the facts pleaded, having regardto the materials made available on record and upon hearing learnedcounsel Senior Counsel for the appellant and the learned AdditionalPublic Prosecutor contra, what this Court is able to assess from thewhole affair connected to the case projected by the prosecutionbefore the lower Court to the effect of charging not only theappellant herein who was the first accused before the Court ofPrincipal Sessions Judge, Erode, but also two others who were noneothers than the parents of this appellant who were accused No.2 and3 and they were charged under Section 498-A and Section 4 of the Dowry Prohibition Act respectively and since the same did not cometo be proved, they both were acquitted by the trial Court and onlythis appellant/A.1 came to be held guilty of the offences chargedunder Section 498-A, 302, 201 IPC and under Section 4 of the DowryProhibition Act and convicted and sentenced him respectively toundergo RI for three years, imprisonment for life; RigorousImprisonment for five years and Rigorous Imprisonment for sixmonths and a fine of Rs.2000/- in default to undergo a further R.I.of two months further ordering the above sentences to runconcurrently.

19. It is only challenging the above conviction and sentenceordered by the trial Court, the Court of Principal Sessions Judge,Erode as per its judgment dated 19.02.2002 made in S.C.No.145 of2001, the appellant has come forward to prefer the above criminalappeal on such grounds that the trial Court below has failed toappreciate that the deceased and appellant married against thewishes of their parents and they lived separately and hence, thedemand of dowry cannot be true; that the trial Judge failed to notefrom the evidence of P.W.5 that he paid Rs.30,000/- as dowry on twooccasions being falsified by the evidence of P.W.6, that his fatherwas heavily indebted; that Ex.P.6 was not signed by the deceasedand there is no allegation that the appellant demanded dowry; thatno neighbours were examined to ascertain the relationship betweenthe deceased and the appellant which the lower Court has failed tonote; that the circumstantial evidence relied on by the prosecutionis not cogent but led to the conclusion that the appellant was notguilty; that the learned Judge erred in relying on the extrajudicial confession of the appellant through P.W.12 without anyindependent corroboration in material particulars; that the learnedJudge failed to note that there is an entrance on the western sideof the kitchen and another kitchen to the hall and hence locking ofthe door of the kitchen has no significance; that only Vijayalatha aneighbour hearing the cry of the deceased went near the scene ofoccurrence immediately and she was examined; that the learned Judgefailed to note that the medical evidence did not support theprosecution; that the appellant did not go away from the scene andwas very much available at the inquest and in such event the arrestand conviction which led to the recovery of M.Os.10 to 12 cannot bebelieved.

20. Learned Senior counsel would then read the relevantportions of the evidence of P.W.5, the father of the deceased whowould depose to the effect of marriage of the deceased with thefirst accused, the demand of dowry and the torture meted out by thesecond and third accused; and thereafter he got news through a thirdparty that his daughter died of burn injuries and when he rushed upto the place of residence of the accused, it was locked with theiron chain and when he peeped through the windows, his daughter wasseen dead with burn injuries; learned Senior counsel would then cite the evidence of P.W.17 the Executive Magistrate who conducted theinquest in order to contradict the version of P.W.5 he would pointfrom the inquest report showing the presence of, a kerosene cane atthe scene of occurrence, the capacity of which is 3 litres and itcontained one litre kerosene; that nearby the deceased, there was amatch box, on such arguments, learned Senior Counsel would point outthat it is a clear case of sucide by self-immolation and not amurder by setting her on fire much less by the act of theappellant/A1, for which there is no evidence.

21. Per contra, the learned Additional Public Prosecutor wouldargue to the effect that it is a case of dowry harassment andtorture resulting in the commission of the offence by the appellantin which the deceased is none other than his own wife; that themarriage took place according to their own wishes and understandingwhich was unliked by the appellant; that the inquest report Ex.P.17speaks about the history of the case; that the conduct of theappellant was not at all good; that the evidence of P.Ws.5 to 8 havebeen taken into consideration by the trial Court; that P.W.5 is thefather of the deceased, P.W.6 is the younger sister and P.Ws.7 and 8are the neighbours of the deceased; that the learned counsel wouldread out from the evidence of these witnesses to show that all thesewitnesses would speak to the demand of dowry and torture meted outby all the accused.

22. In the wake of these evidence and further in considerationof the medical and police evidence made available, the trial Courthas ultimately arrived at the conclusion to hold the appellantguilty of the offence further holding that the Accused Nos.2 and 3,the father and mother of the appellant not guilty thus convictingand sentencing the appellant in the manner extracted supra andacquitting A.2 and A.3.

23. In the above scenario, it has become necessary on the partof this Court to assess as to 'whether the convicting judgmentrendered against the appellant punishing him in the manner the trialCourt has done, as extracted supra, has been arrived at in themanner required under law or the lower Court has arrived at suchconclusions so as to convict and sentence the appellant erroneouslyor in an unreasonable or arbitrary manner?'

24. On the part of the learned senior counsel appearing onbehalf of the appellant/convict, he would quote from H.W.V.CoxMedical Jurisprudence and Toxicology, the tests to find out 'whetherthe burns were inflicted before or after the death' and Modi'sMedical Jurisprudence and Toxicology giving the 'clinical features'at three stages (i) the stage of inspiratory dyspnoea; (ii) thestage of expiratory dyspnoea and (iii) the stage of exhaustion andrespiratory failure. The learned senior counsel would also citefrom the book 'Police: the investigation of violence' wherein also the symptoms of suspicious injuries have been explained. At thisjuncture it is worth mentioning of the views of the Doctor whoperformed the Post Mortem on the dead body of the deceased Selvi, inhis deposition and report giving the symptoms both external andinternal as in the following manner which is direct to the point:

"Body of a moderately nourished female lies on its backwith pugilistic aptitude. Tongue bitten. Mouth opened.No frothy discharge from nose and mouth. Extensive burnsall over the body. Scalp: hair not burnt except a fewhair on the forehead. Burnt area shows all are inflictedsimultaneously. Skin dull white appearance. II & IIIburns present. Rt. sole skin completely detached andhanged outside.Internal Injuries: Thorax - No fracture ribs.Heart chamber 220 gms. - empty.Lung respondent.320 gms. Lt. 300 gms. - congested.Hyoid bone intact.Liver 900 gms. - congested.Stomach contains 500 gms. of undigested rice Spleen 90 gms. - congested.Bladder empty and Uterus 18-20 weeks size with dead malefoetus seen.Kidneys : each 120 gms. - congested.Skull bone normal and pelvis normalLarynx, Trachea & Bronchi.No sooty particlesTrachea & Larynx congested.Viscera preserved.Death would have occurred about 24-28 hours prior toautopsy.Opinion as to cause of death:Reserved pending report of Chemical analysis on viscera."

25. So far as the Post Mortem Examination held on the part ofP.W.2, the Medical Officer who attended on the body of the deceased,having given the external and internal symptoms noted by thisMedical witness at the time of her post mortem examination andhaving sent the vital parts for chemical examination, she wouldoffer her opinion to the effect that the deceased would appear tohave died due to asphyxia; that the hyoid bone is intact; that thedeceased would have died of suffocation which had not happened dueto the burn injuries and that the burn injuries found on the body ofthe deceased were post-mortem injuries. Further, no poisonoussubstances were found in the viscera in the chemical analysis andtherefore the lower Court has every reason to arrive at itsconclusion holding that it was not a suicide by self-immolation since it has been definitely held on the part of the medicalfindings that the death was not due to the burn injuries and theburn injuries found on the body of the deceased were post-morteminjuries and that the deceased had died of asphyxia.

26. The case of the prosecution is that all the three accusedincluding the appellant were harassing the deceased by demand ofdowry on various occasions even a month prior to the date ofoccurrence ultimately compelling her to bring Rs.50,000/= from herfather and since the deceased did not bring the dowry amountdemanded by the accused, the appellant, with the intention to commitmurder of the deceased, had beaten her severely with force as aresult of which the victim, who was pregnant by five months hadfallen down at the kitchen, sustained hurt and started bleeding anddied; that in order to screen the death of the victim, the appellantpoured kerosene on her dead body and closing the door and locking itfrom outside lighted match stick and threw the same through the openwindow of the kitchen and set fire to the dead body of the victimand ran-off from the scene.

27. The medical witness who is an expert witness knowing themedical science having studied and practised in the field, not onlyon her findings at the time of post mortem examination but also fromout of the findings of the chemical analysis report was definitelyable to arrive at the conclusion confirming the case of theprosecution that the deceased did not die of self-immolationcommitting suicide but it was a death due to asphyxia and after thedeath, pouring the kerosene, the burnt injuries found on the body ofthe deceased and therefore they could not have been caused by thedeceased and all the circumstances leading to the death to have beencaused and then for the burn injuries which were found on the bodyof the deceased to occur, all the evidences suggest only theappellant to have committed the offence and in these circumstances,the trial Court was able to arrive at the conclusion to hold that itis the appellant/convict who committed the murder and the other actsof burning the body pouring kerosene and torching the same throughthe window standing from outside in order to make it appear that itwas a suicide and hence would find him guilty under Sections 302 and201 IPC and Section 4 of the Dowry Prohibition Act thus convictingand sentencing him to undergo the imprisonment and fine mentionedsupra.

28. Yet another strong circumstance is the recovery of M.Os.10to 12 under Ex.P.9, the admissible portion of the confessionstatement given by the appellant/accused particularly M.O.11 lungiwith kerosene odour worn by the accused at the time that heperformed the operation which have guided the lower Court in nosmaller measure to consolidate the conclusions already arrived atpointing to the appellant that it is he who caused the death of thedeceased by physical torture and causing the disappearance of the evidence by burning the body of the deceased pouring kerosene afterthe death. Therefore, this Court is not able to find any patenterror or perversity in approach or other serious infirmity orinconsistency not only in the conclusion arrived at by the Court ofSessions but also the manner in which the same has been arrived atto hold that the prosecution has proved its case beyond allreasonable doubts and to convict the accused under Sections 302 and201 IPC and under Section 4 of the Dowry Prohibition Act andrespectively sentencing him to undergo imprisonment for life,rigorous imprisonment for five years and to undergo rigorousimprisonment for six months and to pay a fine of Rs.2,000/= indefault to undergo further period of two months rigorousimprisonment and the said conviction and sentence being quite legaland reasonable, this Court does not find any reason to cause itsinterference into the well considered and merited judgment of thetrial Court and hence the following judgment:

In result,

(i) the above Criminal Appeal does not merit acceptancebut becomes liable only to be dismissed and is dismissedaccordingly.

(ii) The judgment dated 19.2.2002 rendered in S.C.No.145of 2001 by the Court of Principal Sessions Judge, Erode isconfirmed.

kvsg/RaoSd/Asst.Registrar/true copy/

Sub Asst.Registrar

To

1. The Principal Sessions Judge,

Erode.

2. The District Collector,

Erode.

3. The Director General of Police, Chennai. Chennai.

4. The Superintendent,

Central Prison,

Coimbatore.

5. The Inspector of Police Alangiam Police Station Erode District.

6. The Public Prosecutor, High Court, Madras.

+ 1 CC to Mr.M.M.Sundaresh, Advocate SR No.57885.

Judgment in Crl.A.427/2002.

28.12.2004.

RA (CO)

EJ