TaxTMI 
TaxTMI 
2009 (5) TMI 861
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....t 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 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 photographe....
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..... 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. 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. ....
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....lly 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....
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....ted 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 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 no....
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....death. A different conclusion was required to be arrived at keeping in view the fact that a large number of symptoms were absent which 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 ....
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....port. 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 the one and only method by which a medical examiner can conclude that the c....
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.... 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 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 pr....
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....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 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 c....
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....ers 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. (2) the facts so established should be consistent only with the hypothesis of the gui....
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.... 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 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 h....
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.... 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 pol....