Palraj vs The State Rep. By on 16 December, 2019

[Cites 12, Cited by 0]

Madras High Court

Palraj vs The State Rep. By on 16 December, 2019

Criminal Appeal (MD) No.59 of 2018 has been filed by the accused No.1 as against the judgment of conviction and sentence imposed on him by the learned IV Additional District and Sessions Judge, Tirunelveli in S.C.No.751 of 2016 dated 19.01.2018. The defacto complainant/P.W.1 had also preferred Criminal Appeals (MD) No.429 and 430 of 2018 as against the said judgment acquitting the accused No.1 for the offences under Sections 120-B(1) and 449 I.P.C. and acquitting the accused Nos.2 and 3 from all the charges.

2.Since the judgment challenged in these Criminal Appeals are one and the same, they are disposed of by this common judgment.

3.Before the trial Court, the appellant in Crl.A. (MD) No.59 of 2018/the first accused and the respondents 2 and 3 in Crl.A.(MD) No.430 of 2018/accused Nos.2 and 3 were tried for the offences punishable under Sections 3/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 120-B(1), 449, 302 and 201 IPC. In conclusion of the trial, the learned trial Judge by judgment dated 19.01.2018, acquitted the accused No.1 for the commission of the offences under Sections 120-B(1) and 449 I.P.C. and acquitted the accused Nos.2 and 3 for the commission of offences under Sections 120-B(1), 449, 302 and 201 I.P.C. for the reason that the prosecution has not proved their case beyond reasonable doubt and found them not guilty of the above charges framed against them. Aggrieved over the same, PW1 / de facto complainant has filed Crl.A.(MD) Nos.429 and 430 of 2018. However, the trial Court found the accused No.1 guilty for the offences under Sections 302 and 201 I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs. 1,000/- with default sentence of one year rigorous imprisonment for the commission of offence under Section 302 I.P.C. and sentenced him to undergo five years rigorous imprisonment and to pay a fine of Rs.1,000/- with default sentence of six months rigorous imprisonment for the commission of offence under Section 201 I.P.C. Aggrieved over the same, the accused No.1 has filed Crl.A.(MD) No.59 of 2018.

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4.The case of the prosecution in nutshell is as follows:

4.1.The deceased Vetriselvi is the mother of P.W.

1. The deceased after divorce from her husband Thangapandian was living in her native place Ayalpatti Village and the P.W.1 was living with his father at Vellore. P.W.1 used to talk to his mother daily over phone and on 18.05.2015, when he called his mother over phone, there was no response and therefore, he called his maternal uncle P.W.2, who was residing in the same village, through phone and enquired about his mother.

P.W.2 went to the house of the deceased, verified and informed P.W.1 that his mother's house was locked from outside. Therefore, P.W.1 came to Ayalpatti Village on 24.05.2015, ascertained the missing of his mother and lodged a complaint before the respondent police on 26.05.2015 at about 7.00 p.m. 4.2.P.W.19, the Head Constable at Thiruvengadam Police Station received the complaint [Ex.P.1] and registered a case in Crime No.102 of 2015, for woman missing and despatched the Printed F.I.R. [Ex.P.14] to the Court and the same was received by the concerned judicial Magistrate on 01.06.2015.

5/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 4.3.P.W.31 – Sangareswaran, the Inspector of Police, Sankarankovil Taluk Police Station, who was also in charge of Panavadali Chathiram Police Station took up the investigation in Crime No.102 of 2015 on 08.06.2015 and he went to the house of the deceased and prepared Observation Mahazar (Ex.P.2) and Sketch (Ex.P.33) in the presence of P.W.4 – Shanthi and one Dhanalakshmi. He broke open the house of the deceased through the Village Administrative Officer and found that all the things are intact and nothing was missing.

4.4.The further investigation was carried out by P.W.30, Inspector of Police and he proceeded with the investigation from 26.05.2015 and he examined the neighbours and others and also collected the call details of the deceased. The cellphone No.9486702433 used by the deceased was switched off. The deceased also used another cellphone and by collecting the I.M.I. Number of the Cellphone, he proceeded with the investigation.

4.5.While so, at about 6.00 a.m. near Ayalpatti junction in Sankarankoil – Tirunelveli Main Road, the accused No.1 attempted to escape on seeing the police and the police party secured him in the presence of P.W.6 and P.W.7 and recorded the confession statement voluntarily 6/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 given by him. In the said confession statement, the accused No,1 admitted before P.W.30 that he along with accused Nos.2 and 3 had taken away the deceased Vetriselvi and killed her and concealed her dead body in a septic tank and he also identified the place of occurrence. Based on the admissible portion of the confession leading to recovery Ex.P.20, P.W.30 recovered M.O.3 Hero Honda Motorcycle bearing registration No.TN-76-W-8494 under a cover of mahazar Ex.P.21. Thereafter, accused No.1 took them to Thirumalpuram Village and identified a septic tank behind the farm house of one Raman Nair of Kerala, wherein at about 9.30 a.m., the investigation officer prepared observation mahazar [Ex.P.3] and rough sketch [Ex.P.22] in the presence of Jeyasingh [P.W.5] and Ayyadurai. Thereafter, P.W.30 altered the offences into 120(b), 302 and 201 I.P.C. and forwarded the alteration report to the learned Judicial Magistrate, Sankarankovil.

4.6.He also arrested the accused No.3 on 11.08.2015 at about 3.00 p.m. near Primary Health Centre, Gurukkalpatti and recorded his confession statement voluntarily given in the presence of P.W.6 and P.W.7. The admissible portion of the confession statement is 7/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 Ex.P.23. The accused No.3 in his confession statement has stated that the body of the deceased was concealed in the septic tank and he has also hided the cellphone used by the deceased in the almyrah of his house. Pursuant to the same, P.W.30 recovered M.O1 – M.80 bike TN-72-W 5676 under a cover of mahazar Ex.P.24 and M.O.2, the cellphone of the deceased under a cover of mahazar Ex.P.25.

4.7.Thereafter, P.W.30 made a request to the Tahsildar, Sankarankovil – P.W.27 to exhume the body of the deceased from the Septic Tank. P.W.27, Tahsildar along with doctor P.W.22 went to the place of occurrence on 12.08.2015 at about 3.00 p.m. and with the help of JCB machine, the septic tank was broke open and they found the dead body in a decomposed stage. The body was taken in the presence of P.W.9 and P.W.10 and the Tahsildar, P.W.27 conducted inquest in the place of occurrence from 4.40 p.m. to 5.20 p.m. and the inquest report is marked as Ex.P.18. Thereafter, P.W.27 handed over the dead body to P.W.21, Grade I Police Constable for conducting postmortem.

4.8.The P.W.22 is the doctor who conducted the postmortem and according to him the body was in an advanced stage of decomposition. Both hands and feet were 8/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 tied with a pink colour saree. Dress materials found in the body are jacket, in skirt and a saree. The other findings are as follows:

“On removal front part of body shows adipocere changes and back of head, back of chest and abdomen, left gluteal region, back of left and right thigh and 30 x 16 cms of right side of front of abdomen shows postmortem burns. Such tissue damage noted in right side of forehead and right ear. Scalp hair comes off without any effort. A complete broad pressure abrasion of size 29 x 5cms to 8cms noted in middle of neck. It completely encircles the neck with 5cms breadth in front of neck and 8cms breath in back of neck. On dissection of neck, soft tissues beneath the pressure abrasion appears dark in colour. Hyoid bone shows postmortem disarticulation and thyroid cartilage intact.

OTHER FINDINGS:

Heart, Lungs, Liver, Spleen & Kidneys :

Identifiable Hyoid Bone : Postmortem disarticulation present. Stomach : Contains 50gms of partially digested cooked rice particles, no specific smell and mucosa in advanced stage of decomposition. Small Intestine: Contains 20ml of yellow colour fluid, no specific smell and mucosa in advanced stage of decomposition.

9/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 Bladder: Contains 20ml of urine.

Uterus: Not found in its place.

Brain: Pulpy in consistency.

Viscera preserved for chemical analysis.” The postmortem certificate is marked as Ex.P.15 and the doctor P.W.22 gave his final opinion that the deceased would appear to have died of asphyxia due to ligature strangulation and death would have occurred 3 weeks to 3 months prior to examination. His Final Opinion is marked as Ex.P.16. The rough note taken by the medical officer, P.W.22 from the spot in the prescribed postmortem is also marked as Ex,P,17.

4.9.Thereafter, the investigation Officer P.W.30 from the place of occurrence recovered burnt coconut leaves (M.O.4), half litre white colour plastic bottle with blue colour cover and its bottom portion was half melted (M.0.5), broken mortals from the septic tank (M.O.

6), cement pieces from the lit of the septic tank series (M.O.7), the smoke particles inside the septic tank lit (M.O.8), 100 ml water from the septic tank (M.O.9) under a cover of mahazar Ex.P.27 and after postmortem he recovered half burnt pink colour saree (M.O.10), Violet colour saree (M.O.11), Red colour in skirt (M.O.12), Blue 10/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 colour pale in skirt (M.O.13), a pale Jacket (M.O.14), Tulsi beat chain (M.O.15), Copper ring (M.O.16) from the body of the deceased and sent the same to the Judicial Magistrate, Sankarankovil in Form 95.

4.10.On the next day, the second accused Chinnadurai surrendered before the Judicial Magistrate, Rajapalayam and on 17.08.2015. The Investigation Officer filed an application before the learned Judicial Magistrate, Sankarankovil for taking him to police custody and took him to police custody on 18.08.2015 and recorded his confession statement in the presence of P.W. 13 and P.W.14. The admissible portion of the confession statement is marked as Ex.P.28. Pursuant to his confession, P.W.30 recovered yellow saffron colour towel (M.O.18) and a motorcycle bearing registration No. TN-76- X-0079 (M.O.17) parked in the house of the accused No.2 under a cover of mahazar Ex.P.31 and his Mahindra Jeep (M.O.19) TN-09-G-1256 under a cover of mahazar Ex.P.32. After the postmortem, he also collected the skull and femur bone of the deceased for DNA examination and sent the same for examination through the constable P.W.21. He also examined the witnesses and recorded their statements.

11/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 4.11.The further investigation was carried out by P.W.32, Inspector of Police and he proceeded with the investigation from 27.01.2016 and collected the reports of Super Imposition Test and DNA Test from the Forensic Science Laboratory and the postmortem certificate. He also collected the cellphone details of the deceased Vetriselvi and its I.M.I. number details. He also examined the witnesses and filed his final report as against the accused on 07.07.2016 for the offences under Sections 120(B), 449, 302, 342, 302 r/w 34, 342 r/w 34, 201 r/w 201 I.P.C.

5.During the trial 32 witnesses have been examined on the side of the prosecution and 33 documents were marked and 21 material objects were produced in support of the prosecution case. Among the witnesses, Accused Nos.6, 7, 9, 11, 13, 14, 15, 20, 23 and 24 have turned hostile. When the incriminating materials were put to the accused under Section 313 CrPC, the accused denied the same. They have not examined any witness or marked any document in support of their case.

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6.In conclusion of the trial, the learned Trial Judge, by judgment dated 19.01.2018 found the accused No. 1 guilty of the offences under Sections 302 and 201 I.P.C. and sentenced him as stated in paragraph No.3, while acquitting him for the commission of the offences under Sections 120-B(1) and 449 I.P.C. The trial Court has acquitted accused Nos.2 and 3 from all the charges. Aggrieved over the same, the accused No.1 has filed Crl.A.(MD) No.59 of 2018 and PW1 / de facto complainant has filed Crl.A.(MD) No.429 and 430 of 2018.

7.Mr.Mohideen Basha, the learned counsel appearing for the appellant/A1 in Crl.A.(MD) No.59 of 2018 submits that except the evidence of P.W.1 and the recovery, there is no other incriminating material produced by the prosecution to fix the guilt on the accused. The dead body was recovered after three months in a decomposed stage and therefore, the evidence of the doctor that the deceased was killed by strangulation cannot be accepted and the dead body was also not identified by P.W.1, the only son of the deceased. The trial Court, which had extended the benefit of doubt in favour of accused Nos.2 and 3 ought to have extended the same in favour of the first accused also.

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8.Per contra, Mr.R.Anandaraj, the learned Additional Public Prosecutor, appearing for the State submits that the dead body was recovered at the instance of the accused No.1 and therefore, the accused No.1 was rightly convicted by the trial Court. The recovery of material objects pursuant to the confession of the accused also establishes the case as against them.

9.Mr.Palani Velayutham, the learned counsel appearing for the appellant/P.W.1 in Crl.A.(MD) Nos.429 and 430 of 2018 submits that the dead body of the deceased was concealed in a septic tank and also exhumed only at the instance of the first accused and apart from the same the cellphone of the deceased was also recovered from the accused No.3 and the Jeep used for the occurrence was recovered from the accused No.2 and therefore, the prosecution has established its case through the recoveries made pursuant to the confession statements and the doctor P.W.22 has categorically stated that the deceased was strangulated and killed and the dead body was found in a half burnt stage and the fact that the deceased was killed and concealed in a septic tank establishes the guilt against the accused. However, 14/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 the trial Court has concluded that the accused Nos.2 and 3 are not guilty in an erroneous manner.

10.This Court paid its anxious consideration to the rival submissions and also perused the available records.

11.This is a case of circumstantial evidence. The circumstances available in this case is that P.W.1 called his mother Vetriselvi over phone on 18.05.2015. There was no response and therefore, he verified about his mother through his uncle P.W.2 and he after verification informed P.W.1 that the door of the house of his mother was found locked and therefore, he came to Ayalkudi Village on 24.05.2015 and lodged a complaint before the respondent police on 26.05.2015. Pursuant to the complaint, the accused No.1 was arrested on 11.08.2015, when he attempted to escape on seeing the police party. Pursuant to his confession statement, the body was exhumed from the farm house of Raman Nair, The doctor, who conducted the postmortem found ligature mark on the deceased and opined that the deceased would appear to have died of asphyxia due to ligature strangulation three 15/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 months prior to the examination. Based on these available evidences, the trial Court found the first accused guilty but acquitted the accused Nos.2 and 3 on the ground that there is no evidence against them.

12.The deceased was living alone at Ayalpatti Village and she is a divorcee. P.W.1 is her son living with his father at Vellore. They are living separately for more than 30 years. On 18.05.2015, the P.W.1 called his mother over phone. Since there was no response, he verified her whereabouts through his uncle P.W.2 and then came to Ayalpatti Village and since her house was found locked, he lodged a complaint on 26.05.2015. On 11.08.2015, after 3 months from the date of complaint, accused No.1 was arrested by chance, when he attempted to escape from the place on seeing the police party. The confession statement was recorded even before the arrest and pursuant to the confession statement, the dead body was said to have been recovered from the Farm House of Raman Nayar of Kerala on 12.08.2015.

13.The Tahsildar, Sankarankovil, P.W.27 has specifically stated that the investigation officer made a 16/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 request to him on 12.08.2015 and pursuant to the same, he along with P.W.22 – doctor went to the place of occurrence at Thirumalapuram Village on 12.08.2015 at about 3.00 p.m. and in the farm house of Raman Nair, the septic tank was identified as the place in which the dead body was concealed and in his presence, the Inspector of Police broke open the septic tank with the help of JCB machine and they found the dead body floating in the septic tank. The dead body was taken out and postmortem was conducted. The presence of the accused No.1 as well as the presence of P.W.1 Sureshkumar at the time of exhumation of the body on 12.08.2015 was not spoken by P.W.27 – Thasildar.

14.The doctor, who conducted the postmortem on the dead body from the place of occurrence has noted down in his postmortem certificate that it is a moderately built body of a male. However, in the cross-examination, the doctor has denied the same and due to typographical error it is mentioned in the postmortem certificate Ex.P.15 as male body instead of female body. The doctor has noted down an abrasion 29 x 5 to 8cms in middle of neck, encircles the neck with 5cms breadth in front of neck and 17/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 8cms breadth in back of neck and gave his opinion that the deceased would appear to have died of asphyxia due to ligature strangulation. The doctor, who conducted the postmortem admitted that the dead body was exhumed in an advanced stage of decomposition. The doctor in his postmortem certificate Ex.P.15 has mentioned that the body was identified to him by incharge Grade I Police constable. The request for exhumation was made on 11.08.2015 at 4.00 p.m. and the time for exhumation of the dead body was fixed on 12.08.2015 at 3.00 p.m. and the team went to the place of occurrence at 4.00 p.m. and the spot was identified by the Tahsildar, Sankarankovil, which lies in Survey No.151.3C Thirumalapuram Village belongs to one Raman Nayar, inside the Septic Tank, which lies behind a constructed house and the septic tank was opened using a JCB at 4.05 p.m. and the septic tank was with sewage water upto 25cms from ground level and the body was floating with face downwards. He also noted down the stomach contains 50 grams of partially digested cooked rice particles during the postmortem.

15.The case of the prosecution is that the deceased was found missing from her house from 18/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 18.05.2015. The body was recovered on 12.08.2015. Neither the Tahsildar nor the doctor in whose presence the body was taken, have not stated that P.W.1 was also present at the time of exhumation. There is no evidence that who identified the body as that it is the body of Vetriselvi. The P.W.1 was living separately away from his mother for 30 years at Vellore and he lodged the complaint on 26.05.2015 and thereafter, went back to Vellore and the accused No.1 was arrested by chance on 11.08.2015 and on his confession statement the body was recovered in the presence of Tahsildar on 12.08.2015. The body was taken out from the septic tank by opening the septic tank using JCB machine and at that relevant point of time neither the accused nor P.W.1 was present in the place of occurrence.

16.The accused No.1 was arrested on 11.08.2015 at 6.00 a.m. The body was exhumed on 12.08.2015 at about 4.05 p.m. even before that the accused No.1 was remanded to judicial custody. The accused was not present at the time of exhumation on 12.08.2015. P.W.30 in his evidence has stated that the place was identified by the accused No.1 in the presence of P.W.5 – Jeyasingh and one 19/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 Ayyadurai. P.W.5 is a relative of P.W.1 and he in his evidence has not stated that the place of occurrence at Thirumalapuram was identified only at the instance of accused No.1. The presence of accused No.1 at the time of preparing observation mahazar in the place of occurrence is not spoken by the P.W.5 – Jeyasingh. The accused No.1 was said to have been arrested in the presence of P.W.6 – Veluchamy and P.W.7 – Sounderraj and both these witnesses have turned hostile and did not support the case of the prosecution.

17.The prosecution case is that the accused No.1 has attempted to purchase the land of the deceased and on account of which the accused No.1 had intimidated the deceased in the year 2013, for which, a case was also registered in Crime No.72 of 2013 on the file of Panavadalichatram Police Station and the deceased was also having some chit transaction with the accused No.2, but even after paying the entire chit amount, the accused No.2 refused to return the money and therefore, there was a dispute between the accused No.2 and the deceased. Though two theories have been made on the side of the prosecution, prosecution has not established its case 20/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 through any documents. The F.I.R. in Crime No.72 of 2013 was not placed before the trial Court. The investigation officer P.W.30 admitted in his cross-examination that during his investigation no witness has stated about the dispute between the deceased and the accused No.1 and the deceased has not preferred any complaint as against A1 in their police station and there is no civil dispute or any other dispute prevailing between the deceased and the accused No.1. This prosecution theory also inserted through P.W.1 by way of his re-examination. However, it is not supported by any documentary evidence. The prosecution has advanced two theories one against A1 and another motive as against A2. Both these motive aspects have not been established by the prosecution.

18.In a case of circumstantial evidence, motive is a crucial thing in deciding the issue. The prosecution has failed to establish any motive as against the accused in this case. Moreover, there is no evidence for the identification of the place of occurrence by the accused No.1. The presence of A1 while exhumation has not been spoken by the Tahsildar, the doctor, the witnesses for arrest and the witnesses for Observation Mahazar. 21/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 Excepting the evidence of the investigation officer P.W. 30, there is no other material connecting the accused No. 1 for identifying the place of occurrence. Even in the observation mahazar it is not mentioned that the place of occurrence was identified at the instance of the accused No.1. The dead body was also not identified by P.W.1 as well as P.W.8, daughter of the deceased. However, the prosecution has attempted to establish the dead body as that of Vetriselvi through the scientific expert P.W.25. The deceased was found missing on 18.05.2015 and the body was exhumed after three months and that too from a septic tank in a decomposed condition. There is no evidence available on the side of prosecution as to when this commission of offence has taken place. The doctor, who conducted the postmortem gave a random opinion that the death might have taken place in between 3 weeks to 3 months.

19.The Doctor, who conducted postmortem noted down the presence of 50gms of partially cooked rice particles from the stomach of the deceased. The presence of the food particles raises a doubt with regard to the time of death as projected by the prosecution, as light meal 22/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 usually leaves the stomach within 2 hours after being eaten, medium size meal requires 3-4 hours and heavy meal requires 4-6 hours.

20.The Modi's Medical Jurisprudence reads as follows:

1.The stomach, as a rule, putrefies much sooner after death. It putrefies usually from twenty-four to thirty six hours in summer and from three to six days in winter, but it may sometimes begins to putrefy much earlier. As a consequence of putrefaction, dark-red, irregular patches are first seen on the posterior wall and then appear on the anterior wall.

2.Putrefaction in water: The rate of putrefaction of a body in water more reliable than that of body exposed to air. The reason behind this is that the temperature of the water is more uniform and the body is protected from air, as long as it remains submerged in water. Ordinarily , a body takes twice as much time in water as in air to undergo the same degree of putrefaction. Putrefaction is retarded, when a body is 23/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 lying in deep water and is well protected by clothing, while it is hastened in a body water and is well protected by clothing with sewage. Putrefaction is accelerated, when the body is removed from water, as the tissues have imbibed much fluid. In such a body, decomposition is so rapid that the changes occurring twenty four hours exposure to the air will be more marked than those ordinarily resulting from a fortnight's further submersion. Casper's dictum is useful for a rough assessment of the rate of putrefaction. It is eight times slower under soil and two times slower under water compared to the body in air (1:28).

Owing to the blood gravitating towards the head, which sinks low in water, the colour changes of decomposition are first noticed on the face instead of the abdomen in ordinary putrefaction. These changes gradually spread downwards from the face to the neck, upper extremities, chest, abdomen and lower limbs.

21.The following table drawn up from the observations of Devergie, shows the putrefactive changes occurring at different periods of time in body submerges in water.


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                                                    Crl. A (MD)Nos.59, 429 and 430 of 2018

                   Sl.No       Putrefactive changes               Time
                      1  Very little change is water is    First four or five
                         cold. Rigor mortis may persist    days
                     2.  The skin of the hands and feet    From five to seven
                         becomes sodden and bleached.      days
                         The face appears softened and
                         has a faded white colour
                     3.  Face swollen and red. Greenish    One to two weeks
                         discoloration on eyelids, lips,
                         neck and sternum. Surface of
                         brain greenish in colour

4. Skin wrinkled, Scortum and Four weeks penis distended with gas. Nails and hair are still intact.

Lungs emphysematous and covers the heart

5. Abdomen distended, skin of Six to eight weeks hands and feet comes off with nails like a glove

22.The above table applies to the bodies immersed during winter in temperature regions. Bodies immersed in summer undergo to the same changes from three to five or six times as rapidly as in winter, changes have been observed within twenty- four hours.

Time since death:

It is very pertinent from a medio-legal point of view that a medical jurist should always be prepared to give an opinion as to the time which elapsed since death, 25/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 when a body is brought to him for postmortem examination. The points to be noted in ascertaining the time are warmth or cooling of the body, the absence or presence of cadaveric hypostasis, rior mortis and the progress of decomposition. All these points have been discussed at full length, but it must be remembered that the conditions producing these changes vary so much in each individual case that only a very approximate time of death can be given. In addition to these, the time of death can be ascertained to some extent from the contents of the stomach, bladder and the intestines.

23.The rate of emptying of stomach varies in heathy persons. The emptying of stomach depends on the • consistency of food • motility of the stomach • osmotic pressure of the stomach contents • quantity of food in duodenum • surroundings in which food is taken • emotional factors and • residual variations.

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24. It varies in man 2.5 – 6 hours. A meal containing carbohydrates generally leaves the stomach early and the cone containing protein, later. The fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, they emptying of the stomach remains in abeyance for a long time states of profound shock and coma. Undigested food has been seen in the stomach of persons, who received severe head injuries, soon after their meal and died within twelve to twenty-four hours afterwards. In one case, the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hour, without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death.

25.The case of the prosecution is that the occurrence has taken place on 18.05.2015. The body was recovered on 12.08.2015, nearly after three months. The possibility of undigested rice particles and that too when the body was found floating in a septic tank is highly doubtful.

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26.The rice particles even if it is kept outside would get fermented within few days and the presence of the rice particles in the stomach raises serious doubt with regard to the time of occurrence. Similarly, the Doctor has also noted down ligature mark on the neck. The medical jurisprudence in this regard reads as follows:

“Ïn cases of strangulation and hanging, the ligature mark would be apparent, even if the epidermis had peeled off, as the skin on and round about the mark persists for some time. In a case of hanging, Modi found a ligature mark in the neck on the sixth day after death, when the body had been putrefied to a large extent. At the postmortem examination held on the fifth day after death when the body was advanced in putrefaction, the presence of mud in the right bronchus led Modi to form a diagnosis of death due to drowning”.

27.In advanced putrefaction, no opinion can be given as to the cause of death, except in case of poisoning, fracture, firearm, injuries, etc., 28/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 Putrefaction in water: The rate of putrefaction is slower in water than in air. Putrefaction is more rapid in warm, fresh water than in cold, salt water. It is more rapid in stagnant water than in running water. Putrefaction is delayed when a body is lying in deep water and is well protected by clothing, while it is rapid in body lying in water contaminated with sewage. As the submerged cadavers float face down with the head lower than the trunk, gaseous distension and post-mortem discolouration are first seen on the face and then spread to the neck, upper extremities, chest, abdomen and lower extremities in that order. When the body is removed from the water, putrefaction is hastened as the tissues have absorbed much water. The epidermis of the hands and feet becomes swollen, bleached and wrinkled after immersion, and may be removed as a cast of extremity, after 2 to 4 days. After several weeks in water, macerated flesh may be stripped from the body by the action of currents or the contact with the floating objects. Fish crustacea (crabs, lobsters, shrimps, etc.,) and water-rats in a sewer may destroy the body.

29/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018

28. As per the medical jurisprudence in advanced putrefaction, no opinion can be given as to the cause of death. In this case the body was found floating in a septic tank and recovered nearly after three months and therefore, the possibility of identifying ligature mark as opined by the Doctor is also highly doubtful. If the ligature mark can be identified by the Doctor, then the time of occurrence as projected by the prosecution cannot be true. The Doctor's opinion is not a gospel truth, on which the finding can be given. In this case, the opinion of the Doctor is also vague and therefore, it cannot be relied upon.

29.The circumstances as projected by the prosecution is not in a form of chain to link with the accused to prove the guilt as against the accused. The available evidence is not sufficient to find the accused guilty for the offence and therefore, the conviction and sentence as against the appellant cannot be sustained.

30.In the result, Criminal Appeals (MD) Nos.429 and 430 of 2018 are dismissed confirming the judgment dated 19.01.2018, made in S.C.No.751 of 2016 by the IV 30/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 Additional District and Sessions Judge, Tirunelveli acquitting A2 and A3 and Crl.A.(MD) No.59 of 2018 is allowed, setting aside the conviction and sentence imposed on A1 and acquitting him from all the charges framed against him. The bail bonds executed by the accused No.1 shall stand cancelled. Fine amount, if any, paid by A1 shall be refunded to him.




                                                    [T.R., J.] [B.P., J.]
                                                         16.12.2019
                 Index      : Yes / No
                 Internet   : Yes / No

                 sj/dsk

                 To

1.The IV Additional District and Sessions Judge, Tirunelveli.

2.The Judicial Magistrate, Sankarankovil.

3.The Inspector of Police, Panavadali Chatram Police Station, Tirunelveli District.

4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

31/32 http://www.judis.nic.in Crl. A (MD)Nos.59, 429 and 430 of 2018 T.RAJA, J.

and B.PUGALENDHI, J.

sj/dsk Crl. A(MD)Nos.59, 429 and 430 of 2018 16.12.2019 32/32 http://www.judis.nic.in

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