MUNNI @ SYED AKBAR Vs STATE OF INSP.OF POLICE, ALL WOMEN PO.ST
Bench: FAKKIR MOHAMED IBRAHIM KALIFULLA,ABHAY MANOHAR SAPRE
Case number: Crl.A. No.-002475-002475 / 2009
Diary number: 11904 / 2009
Advocates: SUSHIL BALWADA Vs
B. BALAJI
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Reportable
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2475 of 2009
Munni @ Syed Akbar …. Appellant VERSUS
State of Inspector Of Police, All Women Police Station, Gobichettipalayam, Erode ….Respondent(s)
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal at the instance of A1, who is the appellant herein, is
directed against the judgment of the Division Bench of the Madras
High Court dated 16.08.2007, passed in Criminal Appeal No.434 of
2006.
2. Brief facts which are required to be stated are that the appellant
is the husband of the deceased Gulsara Banu. Along with the
appellant, his parents were also proceeded against, who were arrayed
as A2 and A3. All the three accused were charged for offences under
Sections 498(A), 302 and 201 of I.P.C. The parents of the appellant
viz., A2 and A3 were found guilty of the offences under Section 498(A)
of I.P.C. as well as under Section 4 of the Dowry Prohibition Act, 1961.
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A2 who was also charged under Sections 302 and 201 of I.P.C. was
acquitted of those charges. A2 and A3 have already undergone the
sentence, even while the appellant’s appeal was preferred before the
High Court. The High Court therefore dealt with the case of the
appellant alone.
3. As far as the occurrence is concerned, the appellant got married
to the deceased on 27.07.1997. They were living in a rented premises
belonging to P.W.3 at Kurumanthur. It was a portion of the house.
The occurrence took place in the morning hours of 12.08.2004. P.W.1
is the complainant who is the father of the deceased. According to
him, he received a phone call from the accused at 3.00 p.m. stating
that the deceased complained of stomach pain and wanted him to
come over to Kurumanthur immediately. Such information was also
passed on to P.W.2, uncle of the deceased, by around 3.30 p.m. and
he also immediately rushed to Kurumanthur which was just 50 kms
away from his place. After P.W.1 reached the place of occurrence at
around 10.00 p.m., he found strangulation marks on the neck of the
deceased. He preferred Ex.P-1-Complaint, before the All Women Police
Station, Gobichetipalayam. The Complaint was lodged with P.W.13,
the Inspector of Police of the said police station.
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4. P.W.13 registered the said complaint in Crime No.5 of 2004 for
the offences under Section 498(A) of I.P.C. and Section 174 of Cr.P.C.
and sent the Express Report to the Judicial Magistrate No.II,
Gobichetipalayam. She stated to have inspected the place of
occurrence and conducted the Inquest over the dead body between
2.30 a.m and 5.30 a.m. in the presence of Panchayatdars and
prepared Ex.P-17-Inquest report. She recorded the statements of
P.Ws.1 to 4 and other witnesses and sent the dead body of the
deceased along with Ex-P-4 requisition through P.W.11 woman police
constable to the Government Hospital, Gobichetipalayam for
postmortem. She recovered M.Os.1 to 4 and M.O.7 in the presence of
witness P.W.7. She forwarded M.Os.9 to 14 along with Form-95
through P.W.11. After examining P.W.1, P.W.3, P.W.4 and P.W.5 on
15.08.2004 and after recording their statements it came to light that it
was not a case of suicide and therefore P.W.13 altered the offences
under Sections 498(A), 302 r/w 201 of I.P.C. and prepared Ex.P.18-
Special Report and forwarded the same to the Court again. The
accused were arrested thereafter on 16.08.2004 at 9.45 p.m. With the
admissible portion of the confession of the appellant in Ex.P-9, P.W.13
recovered T.V.S.50 brake cable wire M.O.8 from the workshop of the
appellant. She also recovered green colour wire M.O.7 at the instance
of the appellant in the presence of P.W.10.
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5. P.W.9 who conducted the postmortem, issued Ex.P-8-
Postmortem Report on 13.08.2004. In Ex.P-8, P.W.9 reserved his
opinion awaiting chemical analysis report. Chemical analysis report
Ex.P-6 was issued by the Professor of Forensic Medicine and District
Police Surgeon, Coimbatore in which inter alia it was stated “HPE
poison was detected Hyoid Bone intact. Death may be due to Asphyxia
due to Straglets.” After the receipt of the aforesaid report, P.W.9
expressed his opinion that the death was due to strangulation. The
appellant along with A2 and A3 were charged for offences under
Sections 498(A), 302 read with 201 as well as Section 4 of the Dowry
Prohibition Act, 1961. As stated earlier, we are concerned only with
the appellant who was the first accused.
6. The trial Court based on the evidence placed before it, convicted
the appellant for offences under Sections 302, 498(A) read with
Section 201 of I.P.C. He was sentenced to life imprisonment for an
offence under Section 302 of I.P.C. apart from fine of Rs.1,000/- and
in default to undergo rigorous imprisonment for one year. He was
sentenced to undergo 3 years imprisonment for an offence under
Section 201 apart from fine of Rs.500/- and in default to undergo
rigorous imprisonment for six months. He was also sentenced under
Section 498(A) to undergo two years rigorous imprisonment and to pay
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a fine of Rs.500/- and in default to undergo six months rigorous
imprisonment. The sentences were to run concurrently.
7. On appeal the Division Bench of the High Court having
confirmed the conviction and sentence imposed on the appellant, the
appellant is before us.
8. We heard Dr.Sushil Balwada, learned counsel for the appellant
and Mr. M. Yogesh Kanna, learned standing counsel for the
respondent State.
9. Dr. Balwada, learned counsel in his submissions, after referring
to the evidence of P.W.13 the investigating officer submitted that there
was great doubt as to whether the occurrence had taken place as
narrated by the prosecution before the Courts below, in as much as,
though P.W.1 stated to have lodged the complaint at 11.00 p.m. on
12.08.2004, the case was registered for offence(s) under Section(s)
498(A) I.P.C. and Section 174 of Cr.P.C. and for no reason, much later
on 16.08.2004, the case was altered as one under Section(s) 302 r/w
Section 201 of I.P.C. and Section 498(A) of I.P.C.
10. According to the learned counsel, there was nothing to show that
the Express Report was immediately forwarded to the Judicial
Magistrate. Learned counsel further submitted that going by the
evidence of P.W.3 and P.W.4 since the body of the deceased was found
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hanging with the aid of a saree and there being no eye witness to the
occurrence, the case of the appellant that the deceased committed
suicide by hanging herself should have been accepted and the
appellant should have been acquitted from all the charges.
11. The learned counsel also contended that there were variations in
the statement of Postmortem Doctor P.W.9 and Forensic Science
Laboratory report which also disclose that there was no overt act to be
attributed to the appellant for the alleged killing of the deceased by
strangulation with the aid of a cable wire.
12. As against the above submissions, Mr. M. Yogesh Kanna learned
standing counsel for the respondent State by drawing our attention to
the evidence of P.W.9-Postmortem Doctor and Ex.P-6, the report of the
Forensic Science Laboratory as well as that of P.Ws.1 to 4 contended
that the offence alleged against the appellant of homicidal death by
strangulating his wife with the aid of a cable wire was conclusively
proved and there was no reason to doubt the said conclusion reached
by the trial Court as well as the High Court.
13. The learned counsel also drew our attention to M.O.5-the
photographs which were marked through P.W.8-the photographer
which also disclose the case of the prosecution that the appellant
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strangulated his wife with the aid of a cable wire and the cause of her
death was fully established.
14. The learned counsel submitted that merely because a mark was
noted on the neck of the deceased, which did not have a full circle on
the neck, it cannot be concluded that the appellant did not cause her
death. The learned counsel was at pains to show that the cable mark
was visible to the naked eye as noted by the Postmortem Doctor P.W.9
as well as Ex.P-6-Forensic Science Laboratory report apart from
strangulation mark found on the neck of the deceased which all show
without any iota of doubt that it was a case of murder and that all the
other attendant circumstances conclusively prove that it was the
appellant who had caused the death of the deceased.
15. Having heard the learned counsel appearing for the appellant
and the learned standing counsel for the respondent State and having
perused the impugned judgments of the High Court and the trial
Court as well as the material documents marked in the case, at the
very outset, it will be relevant to note the incriminating circumstances
which were found established against the appellant.
16. The appellant and the deceased were living together in a portion
let out by P.W.3. On the fateful day in the early morning around 3.00
a.m. according to P.W.3, he heard shrieking noise of the deceased and
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when the wife of P.W.3 went and tapped the door, she heard the
appellant uttering something in Urdu to the deceased and the
deceased herself informed that she suffered a minor electric shock.
Thereafter, the deceased was seen by P.W.4 in the godown where he
was working, to which place, the deceased went and enquired about
the owner of the godown which is a tobacco godown. Subsequently,
P.W.4 along with one of his friends heard the shouts of the appellant
and rushed to the house of the appellant and the house was locked
from inside and they saw the appellant crying and also shouting that
his wife hanged herself from the roof with the aid of a saree.
According to P.W.4, they saw her hanging from the roof and she was
in a kneeled down position. P.W.4 and his friend called upon the
appellant to open the door to enable them to get inside in order to
rescue the deceased. After they entered, they brought the body of the
deceased to the floor and found that she was already dead, though the
appellant claimed that she was alive. It was also stated by P.W.4 that
before entering the house, they saw the appellant on the roof top
removing some of the tiles.
17. P.W.2 who is the uncle of the deceased stated that he was living
50 kms away from the place of appellant and the deceased and that he
got information from the appellant that the deceased was suffering
from stomach pain. On hearing the said information, he along with
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his wife rushed to the place of the appellant where they found the
deceased lying dead on the floor. P.W.2 also stated that his wife on
seeing the body of the deceased noted strangulation marks on her
neck, because of which P.W.2 developed some suspicion and upon the
arrival of P.W.1, the father of the deceased, they decided to lodge a
complaint and that is how the Ex.P-1 came to be lodged through
P.W.1 at around 10.30 p.m. on 12.08.2004.
18. The evidence of P.W.9-the Postmortem Doctor who issued
Ex.P-8-Postmortem Report deposed that initially when he examined
the body of the deceased, he could not offer any definite opinion as he
wanted to verify the Forensic Science Laboratory report.
Subsequently, after receipt of Ex.P-6, the report from Forensic Science
Laboratory, P.W.9 gave the opinion that the death of the deceased was
due to asphyxia. In other words, the theory of hanging by the deceased
on her own, propounded by the appellant was found to be not true.
The report of the Forensic Science Laboratory also confirmed that
there was strangulation marks on the neck of the deceased and that
substance like cable was used for such strangulation. Based on the
appellant’s information, M.Os.7 and 8 cable wires were also recovered.
When the above circumstances were all put to the appellant, there was
only a simple denial and nothing more was stated on behalf of the
appellant.
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19. In the above stated background, when we consider the
contention of the appellant, it was mainly two fold. In the first
instance, it was contended that as per the medical evidence what was
noted on the neck of the deceased was a cable mark from the right
side to the left side of the neck and not all around the neck of the
deceased which would not support the theory of strangulation. It was
then contended that even as per the version of P.W.4 and his friend
who helped the appellant to lower down the body, which was hanging
from the roof top, they found the deceased hanging with the aid of a
saree around her neck. By referring to the said evidence, it was
contended that it was a definite case of suicide and not a homicidal
death. Though in the first blush such a contention appears to be
appealing, on a deeper scrutiny, we find that the same was wholly
unbelievable and does not merit any consideration.
20. It has come out in scientific evidence and expert opinion without
any scope of ambiguity that there was strangulation marks on the
neck of the deceased and that there was also a rope mark which could
have been caused with the aid of the cable wire viz., M.Os.7 and 8.
When such scientific evidence was found to be existing the story spun
by the appellant that his wife was hanging from the roof with the aid
of a saree has been found to be nothing but a concocted one designed
to escape from his culpability. The further fact that the appellant was
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found sitting on the roof top removing certain tiles found to be another
well thought out drama played by the appellant to make P.W.4 and his
friend to believe as though he was innocent and he had nothing to do
with the killing of his deceased wife. On the whole the episode was
attempted by the appellant to show as though his wife committed
suicide while it has come out in evidence through P.W.4 that the
deceased was found in a kneel down position as there was hardly four
feet gap in between the top of the cot and the roof. The appellant
having successfully carried out his evil design in the killing of the
deceased with the use of M.O.8 cable, however, made an unsuccessful
effort to make it appear as though the deceased was hanging from the
roof top with the aid of a saree.
21. If really the deceased had hanged herself with the aid of a saree,
there was absolutely no scope for a cable mark on her neck. There
was also no breaking of the hyoid bone or the trachea. As far as the
contention that there was only a strangulation mark from the right
side of the neck to the left side of the neck on the front side alone and
therefore there would have been no scope for the appellant to have
used a rope to tie around the neck to strangulate the deceased is
concerned, the said contention has to be rejected at the very threshold
since if the appellant had used the cable from behind the deceased on
her neck and thereby suffocated the deceased, there would have been
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no scope at all for any cable mark on the backside of the neck. P.W.9-
Postmortem Doctor with the aid of Ex.P-6-Forensic Science Laboratory
report was able to confirm without any scope for contradiction that the
death of the deceased was due to asphyxia by strangulation and
ligature marks were found on the neck of the deceased. It was the
appellant who was very much present at the time when the deceased
breathed her last. Therefore, the best person who could have come
forward with appropriate explanation to clear the doubt about those
factors found established through expert and scientific evidence could
have been only the appellant and none else. The appellant having
failed to clear those vital circumstances found proved against the
appellant, the ultimate conclusion of the trial Court as well as the
confirmation by the High Court of the guilt of the appellant in the
killing of the deceased falling under Section 302 of I.P.C could have
been the only conclusion, more so, when the appellant was found
guilty of the offence under Sections 498(A) as well as Section 201 of
I.P.C.
22. We have, therefore, no hesitation in confirming the conviction
and the sentence imposed on the appellant. The appeal fails and the
same is dismissed.
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...……….…….………………………………J. [Fakkir Mohamed Ibrahim Kalifulla]
...…….……….……………………………J. [Abhay Manohar Sapre]
New Delhi; October 29, 2014.
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