Madras High Court
Dhavamani vs State Represented By on 31 October, 2025
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.A.Nos.200 of 2019 and 442 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.10.2025
CORAM :
The Hon'ble Mr.JUSTICE N.SATHISH KUMAR
and
The Hon'ble Mr.Justice M.JOTHIRAMAN
Criminal Appeal Nos.200 of 2019 and 442 of 2021
Crl.A.No.200 of 2019 :
Dhavamani .. Appellant
Vs.
1.State represented by
Inspector of Police,
Kadathur Police Station,
Erode District
Crime No.253 of 2017
2.Suresh @ Lingeshwaran
3.Kanammal .. Respondents
Crl.A.No.442 of 2021 :
State rep by
The Inspector of Police,
Kadathur Police Station,
Erode District
(Crime No.253 of 2017) .. Appellant
Vs.
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1.Suresh @ Lingeshwaran
2.Kannammal .. Respondents
Crl.A.No.200 of 2019 has been filed under Section 372 Cr.P.C. seeking
to set aside the order of acquittal dated 25.09.2018 passed in S.C.No.2 of
2018 by the learned Sessions Judge (Fast Track Mahila Court), Erode,
Erode District and convict the accused and pass such other or other
orders as this Hon'ble Court may deem fit and proper under the above
circumstance of the case and thus render justice.
Crl.A.No.442 of 2021 has been filed under Section 378 Cr.P.C. seeking
to set aside the judgment of acquittal of respondents / accused [A-1 and
A-2] passed in S.C.No.2/2018 dated 25.09.2018 by the learned Sessions
Court, Fast Track Mahila Court, Erode, Erode District, convict them in
accordance with law and thus render justice.
For Appellants : Mr.V.Gopinath, Senior Advocate
for Mr.Swami Subramanian
in Crl.A.No.200 of 2019
Mr.A.Damodharan,
Additional Public Prosecutor
assisted by Ms.M.Arifa Thasneem
in Crl.A.No.442 of 2021
For Respondents : Mr.A.K.Kumarasamy, Senior Advocate
for Mr.S.Kaithamalai Kumaran
for RR2 & 3 in Crl.A.No.200 of 2019
and
for RR1 & 2 in Crl.A.No.442 of 2021
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Mr.A.Damodharan,
Additional Public Prosecutor
assisted by Ms.M.Arifa Thasneem
for R1 in Crl.A.No.200 of 2019
----
COMMON JUDGEMENT
(Judgment of the Court was made by N.SATHISH KUMAR, J.)
Aggrieved over the acquittal of the accused by a judgment, dated
25.09.2018 made in S.C.No.2 of 2018 on the file of the Sessions Court
(Fast Track Mahila Court), Erode, Erode District, the appellant / defacto
complainant has filed Crl.A.No.200 of 2019 and the State has preferred
Crl.A.No.442 of 2021. A-1 has faced charges under Sections 498A,
120B, 302 and 203 IPC and A-2 was charged under sections 120B, 302
read with section 120B and 203 IPC.
Facts of the prosecution case :
2.The brief facts of the prosecution case is as follows:
2.1.The deceased Manjula is the wife of A-1 Suresh @
Lingeshwaran. A2 Kannammal is the mother of A-1. According to
P.W.1, who is the mother of the deceased, the marriage between
deceased and A-1 was solemnised on 07.06.2015 at Eengur Thambirati
Amman temple. At the time of marriage, A-1 was working as a software
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engineer in Vaika Technology at Coimbatore and at the time of marriage,
30 sovereigns of jewels and 3 sovereigns of bracelet for A-1 and other
household articles were given to the accused. After marriage, A-1 and
deceased were residing in a joint family at Ayipalayam. Since the
deceased faced certain difficulties in going to job from there, a separate
residence was set up at Coimbatore after three months. At that time also,
household articles at the costs of Rs.50,000/- were given. The son of
P.W.1 and P.W.1's sister son, namely P.W.2 were also staying along with
deceased as they were studying there. A-1 used to quarrel with the
deceased and demanded to get money from P.W.1 and there were
frequent quarrel. From the wedlock, a girl child was born to A-1 and
deceased. During the month of June, 2017, the deceased came to the
house of P.W.1 for attending marriage of a relative and at that time, she
left all her jewels with P.W.1. Thereafter, A-1 demanded the jewels back
and therefore, there were quarrel arose between them. On 03.07.2017, A-
1 came to the house in intoxicated stage and quarreled with deceased.
Thereafter, P.W.1 along with her relatives, went to Ayipalayam and
handed over the jewels to the accused. On 17.08.2017, P.W.1 called her
daughter. At that time, the deceased Manjula informed P.W.1 that she
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was afraid of living with the A1 as he was treating her badly and
deceased was pacified by P.W.1. On the next day, P.W.1 called her
daughter over phone but she did not pick the phone. Later, P.W.2
(P.W.1's sister son) had informed P.W.1 that A-1 has informed him that
the deceased had committed suicide and was taken to the hospital.
Immediately, P.W.1 and her husband and other relatives rushed to the
house of A-1 where the dead body was kept. On finding some contusion
on the neck, P.W.1 suspected some foul play and after all the relatives
came, they decided to give a complaint. Accordingly, they lodged Ex.P.1
complaint with the police.
2.2.P.W.2, who is sister's son of P.W.1, on hearing the news from
A-1 that the deceased had committed suicide and after informing the
news to P.W.1, went to A-1's house. At that time, when he went there,
the body of the deceased was kept in the home. When P.W.2 enquired A-
1, he was informed that the deceased committed suicide. P.W.3 has
witnessed A-1 demanding jewels from P.W.1. P.W.17, Sub Inspector of
Police received the Ex.P.1 complaint and registered the crime in Crime
No.253 of 2017 under section 174 Cr.P.C. (hanging) and FIR which was
registered under Ex.P.16, was forwarded to P.W.16, Revenue Divisional
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Officer to conduct inquest and the copies were also sent to superior
officers.
2.3.P.W.16, RDO conducted inquest on the dead body of the
deceased and recorded the statements of witnesses and prepared the
inquest report Ex.P.13. He opined that the death of the deceased was not
due to the cruelty in connection with the dowry demand. However, he
has recommended for further investigation. P.W.19 Deputy
Superintendent of Police took up the investigation on 19.08.2017 and
went to the place of occurrence at about 10.15 a.m. He observed the
place of occurrence and prepared Ex.P.2 observation mahazar and
Ex.P.18, rough sketch in the presence of P.W.5 VAO and one
Thirumoorthy and also engaged the service of the photographer P.W.15
to take photographs and recorded the statements. He has also given
requisition to Forensic Science department.
2.4.P.W.13, Assistant Director of Forensic science department,
Coimbatore, on receiving the intimation, went to the place of occurrence
and inspected the same and found that there was no damage whatsoever
in the fan which was allegedly used for hanging. She has also further
deposed that the parts of the ceiling fan are not damaged and the dust
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was very much present on the fan. P.W.11 medical officer in Abi S.K.
Hospital deposed that on 18.08.2017 at about 10.00 p.m., the deceased
was brought to the hospital by A-1 and informed him that she has
breathing difficulty. On examination, he found the deceased died and
referred the deceased to Gobichettipalayam Government hospital.
2.5.P.W.14 medical officer attached to Gobichettipalayam
Government hospital had deposed that the dead body of the deceased was
brought to the hospital on 19.08.2017 at 08.00 a.m. On examination, he
confirmed the death of the deceased and issued Ex.P.9. As per the
request made by RDO P.W.16 under Ex.P.10, PW.14 and the other
doctor conducted autopsy over the dead body and found rigor mortis in
the dead body. He found the following external injuries on the dead
body:
'1)A transverse ligature mark prominent 1 CM Breath.
a) about 10 CM length from middle to right side of
neck. b) 8 CM length from middle 1 cm from left side
of neck skin erythema.
2)Bluish discolouration of both hand upto
metacarpophalangeal joint.
3)Multiple linear abrasion mark with erythema over
back upto lower rib cage.
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4)A small abrasion over lower lip present.'
After conducting internal examination, he finally issued postmortem
certificate Ex.P.11 and opined that the deceased appears to have died of
asphyxia due to violent compression of neck by ligature strangulation.
2.6.In the meanwhile, P.W.8 VAO, while he was in the office on
21.08.2017 at about 02.00 p.m., A-1 appeared before him and gave an
extra judicial confession, admitting the crime. P.W.8 had recorded the
confession of A-1 in Ex.P.3 and gave a special report Ex.P.4 and handed
over A-1 to the investigating officer P.W.19. P.W.19 arrested A-1 and
altered the crime to sections 120B and 302 IPC under Ex.P.19, alteration
report. Thereafter, he recorded the confession of A-1 in the presence of
P.W.8 and other witness. The admitted portion of the confession of A-1
is Ex.P.5. Pursuant to the confession, the investigating officer seized the
iron box M.O.1 from one white bag M.O.2 under Ex.P.6 mahazar and
thereafter, forwarded A-1 to the court. The investigating officer, later,
examined all the witnesses and obtained postmortem certificate and also
examined forensic science officials. P.W.19 deposed that from the
investigation, as it is found that the death was not due to dowry
harassment, he handed over the case file to P.W.20 Inspector of Police
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for further investigation. P.W.20 examined the witnesses who were
examined by P.W.19 and as the witnesses gave similar statements as the
one given to P.W.19, he did not record their statements separately. After
obtaining the viscera report Ex.P.20, he obtained the final report from the
Doctor P.W.14. On 20.10.2017, he arrested A-2 near the bus stop and
recorded her confession, forwarded the accused to the Court and finally,
after examining all other witnesses, laid the final report against the
accused under sections 120B, 302, 498A and 203 IPC.
3.On appearance of the accused, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.2 of 2018 and was made over to the Sessions Judge
(Fast Track Mahila Court), Erode for trial.
Charges against the accused :
4.The trial Court framed the following charges against the
accused:
Accused Charges
A1 Sections 498A, 120B, 302 and 203 IPC
A2 Sections 120B, 302 r/w 120B and 203 IPC
5.To prove the case, the prosecution has examined as many as 20
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witnesses, namely P.W.1 to P.W.20 and marked 21 documents, namely
Ex.P.1 to Ex.P.21 and produced 6 material objections, namely M.O.1 to
M.O.6.
6.On completion of the evidence on the side of the prosecution, the
accused were questioned under section 313 Cr.P.C. as to the
incriminating circumstances found against them in the evidence adduced
by the prosecution witnesses. They denied all the incriminating
circumstances as false. On the side of the defence, no evidence was
recorded and no documents were marked.
7.The trial Court, after appreciating the oral and documentary
evidence and materials on record, by judgment dated 25.09.2018
acquitted both the accused from the charges levelled against them.
8.Challenging the acquittal order, Crl.A.No.200 of 2019 has been
filed by the defacto complainant and Crl.A.No.442 of 2021 has been
filed by the State seeking to convict the accused.
Submissions on the side of Appellants :
9.The learned senior counsel appearing for the appellant in
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Crl.A.No.200 of 2019 and learned Additional Public Prosecutor for the
appellant State in Crl.A.No.442 of 2021 made elaborate arguments
against the acquittal of the accused by the trial court. They submit that
the trial court has not appreciated the entire evidence properly. The
medical officer's evidence clearly shows that the death of the deceased is
not due to hanging, whereas the medical officer in his evidence clearly
stated that the death of the deceased is only due to strangulation by the
iron box cable. The entire evidence of the medical officer clearly
indicates that there are ligature marks in the neck. There are transverse
ligature marks, one in the neck measuring about 10cm from middle and
extending right side and second ligature mark measuring 8 cm extending
left side and there was contusion in the neck portion of the skin and
bluish discolouration on both hands upto metacarpophalangeal joint.
There are multiple linear abrasion mark with erythema over back upto
lower rib cage and there is a small abrasion over lower lip. Further, the
learned counsel also submits that the above injuries noted by the medical
officer clearly shows that there are strangulation marks and abrasion
marks and it is clearly proved that it is a case of homicidal violence. The
learned counsel would submit that there is no saliva discharge from the
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mouth and the tongue was not protruding and therefore, it is not a case of
hanging as stated by the accused and that the prosecution has proved the
homicidal violence.
10.Both learned counsel would submit that admittedly, on the date
of occurrence, only the accused and deceased were together in the house.
Therefore, it is for the accused to explain as to what has transpired inside
the house and that is the fact which is clearly within the knowledge of
the accused and the same has not been properly explained. Except stating
that the deceased had some connection with P.W.9, no other explanation
was forthcoming from the accused. It is further submitted that though the
theory of alleged dowry harassment and cruelty has not been established,
even during the RDO enquiry, namely P.W.16, the fact of homicidal
violence has been clearly established. Therefore, it has to be held that
only the accused who has strangulated the deceased with M.O.1, Iron
box cable. The trial court has not appreciated the evidence and the facts
in this regard properly and had extended the benefit of doubt to the
accused. But it is a clear case of homicidal violence and therefore, the
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accused are certainly liable to be punished.
11.In support of the above submissions, the learned senior counsel
for the appellant defacto complainant has relied on the following case
laws:
(a)Trimukh Maroti Kirkan Vs. State of
Maharashtra [(2007) 1 SCC (Cri) 80]; and
(b)Javed Abdul Rajjaq Shaikh Vs. State of
Maharashtra [(2020) 1 SCC (Cri) 101].
12.Trimukh Maroti Kirkan case has been relied on to say that
when the husband and the wife were last seen together and the
occurrence has happened in the house where the husband was residing, it
has been held that if the accused does not offer any explanation as to how
the wife received injuries or offers an explanation which is found to be
false, it is a strong circumstance which indicates that he is responsible for
the commission of the offence. Javed Abdul Rajjaq Shaikh case has
been relied on by the learned senior counsel to distinguish as to what is
throttling, strangulation and hanging and to say that the case on hand is a
case of strangulation by the iron box cable.
Submissions made on the side of the respondents / accused:
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13.On the contrary, the learned counsel for the
respondents/accused would submit that the entire complaint given by
P.W.1 is false and it has been given after due deliberation with the entire
family members of P.W.1, the mother of the deceased. It is the specific
case of the accused in section 313 Cr.P.C. questioning that he had
already suffered fracture in his right hand and on the date of the
occurrence, the accused questioned the deceased as she was continuously
talking in cell phone to some third party. The accused had suspected and
scolded her. Annoyed over the same, the deceased agitated with the
accused, went inside the room and the accused took the child and came
out. After some time, on hearing some sound from the house, he went
inside along with A-2 and found the deceased hanging in the ceiling fan
using a rope. Immediately, with the help of A-2, namely his mother and
other neighbours, who came to the spot, the body of the deceased was
brought down. Immediately the accused took the deceased to two
hospitals and she was declared dead.
14.The learned counsel for the respondents/accused would further
contend that the evidence of P.Ws.6 and 7 clearly shows that the two
accused were taken to the police station on the same day of the
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occurrence and therefore, they were kept in the custody. Therefore, the
contention of the prosecution that A-1 appeared before the Village
Administrative Officer P.W.8 and has given extra judicial confession on
21.08.2017 is highly doubtful, the same has been created only for the
purpose of the case. It is the further contention that the nature of the
injury noted by the medical officer and the the photographs filed as
M.O.3 [series] clearly shows the injury on both sides of the neck and if
really there is a manual strangulation as suggested by the prosecution,
the injury should have been around the neck which is totally absent in
this case. It is the further contention that though some abrasions on the
neck were found, such abrasions are possible while bringing the
deceased down while she was hanging. Therefore, that by itself cannot
be a ground to presume that this is a homicidal violence. Further, the
conduct of the accused is not unnatural and as a normal husband, he
rushed the deceased to the hospital and not only one hospital but he took
the deceased to two hospitals where the doctor declared her dead.
Therefore, it is the contention of the counsel for the accused that the
theory of the prosecution that it is a homicidal violence is highly
improbable.
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15.Further, it is the contention that admittedly A-1 was suffering
fracture on his right hand. This has been clearly admitted by P.W.1
herself. Just a few days prior to the date of occurrence, A-1 met with an
accident on 24.07.2017 in Bengaluru, he was treated in Ganga hospital,
Coimbatore and as his right hand got fractured, a bandage was applied.
Therefore, when a person who has already suffered a fracture in one of
the hands, using M.O.1, iron box cable and strangulating the deceased is
highly improbable. If as per the version of the prosecution, M.O.1, iron
box cable has been used, there must have been some injuries around the
neck and further the iron box would have certainly caused certain
injuries on the body of the deceased which is totally absent. Therefore,
the theory of the prosecution is highly improbable. The opinion of the
medical officer is based on the request made by the Investigating
Officer. Therefore, there is no ground to hold that the prosecution has
established the homicidal violence.
16.The learned counsel has further contended that the theory of
defence that the deceased has developed some contact with a third party,
namely, P.W.9 and he used to speak regularly with the deceased which
was objected by A-1 which resulted in deceased taking the extreme step
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is not ruled out. The prosecution has very conveniently omitted to file the
call details between P.W.9 and the deceased which has been clearly
admitted by the investigating officer. Therefore, it is the contention of
the respondent/accused that when the accused has given a clear
explanation which is also clearly probable and that the prosecution case
is merely on the basis of the medical evidence which is also not
conclusive, it cannot be said that the prosecution has established the
homicidal violence. The accused have been dragged unnecessarily by the
family members of the deceased and after the death of the deceased, the
FIR has been filed after due deliberation and discussion which suffers
from spontaneity. Further, the theory of the prosecution about the dowry
harassment is also found to be false. Hence, it is submitted that the
prosecution has miserably failed to establish the guilt of the accused. The
trial court has rightly appreciated the entire evidence and acquitted the
accused and therefore, the learned counsel for the accused prays for
dismissal of both the criminal appeals.
17.In support of his submissions, the learned counsel has relied on
the following case laws:
(i)Ramachandran Vs. State [(2009) 1 MLJ (Crl) 620];
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(ii)Subramaniam Vs. State of Tamil Nadu [(2009) 14
SCC 415];
(iii)Duraisamy Vs. Gunasekaran [2010-1-LW(Crl)
1094];
(iv)Sanjay Dwarka Rai Vs. State of M.P.
[MANU/MP/0206/1997];
(v)Chinna @ Chinnasamy Vs. State [2017 (2) MWN
(Cr.) 261 (DB)];
(vi)Kagen Bera and another Vs. State of W.B [AIR 1994
Supreme Court 1511]; and
(vii)Chandrappa Vs. State of Karnataka [(2007) 4 SCC
415].
18.Ramachandran case has been cited by the learned counsel for
respondents 2 and 3/accused to say that as to how the ligature marks are
caused either in the case of hanging or in the case of strangulation and
by relying this case, learned senior counsel for the accused submitted that
this is a case of hanging. Subramaniam case has been relied on to
contend that the conduct of the accused should be considered and the
injuries sustained by the deceased also did not suggest that the death
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could have been caused due to strangulation and also to say that since
both the accused and the deceased were in the same place at the time of
occurrence, it cannot be said that the accused had committed the offence.
19.The learned senior counsel has also relied on an order made by
learned Single Judge of this court in Duraisamy case for the proposition
that where the case rests mainly on medical opinion, it is the duty of the
court before relying on such medical evidence to make it sure that no
other contrary opinion is possible. The learned counsel also relied on
Sanjay Dwarka Rai case, which is a judgment of Hon'ble Division
Bench of Madhya Pradesh High Court [Jabalpur Bench], wherein it has
been held that mere suspicion however strong could not form the basis
of conviction and when two views are possible, the view which is
favourable to the accused should be adopted.
20.A judgment of Hon'ble Division Bench of Madras High Court
in Chinna @ Chinnasamy case was relied on to say that the extra
judicial confession when shrouded with doubts cannot be sole basis for
conviction and the conduct of the accused not absconding from the place
of occurrence can be considered. Kagen Bera case was relied on
regarding the conduct of the accused. The learned senior counsel for the
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respondents / accused has also relied on the case of Hon'ble Supreme
Court in Chandrappa for the purpose that where two views are possible
on evidence on record, the one taken by the trial court in favour of the
accused should not be disturbed by appellate court.
Discussion and findings :
21.We have perused the entire materials and has paid anxious
consideration to the submissions made by learned counsel on both sides.
22.It is not in dispute that the deceased and A-1 were married on
07.06.2015. Previously they were residing in a joint family and
thereafter, they have set up a separate house. They were blessed with a
female child. Though P.W.1 in her evidence has stated that at the
inception, there was a demand of dowry and the A-1 used to come in a
drunken mood and beat the deceased, the entire evidence with regard to
dowry demand was found to be false. Even during the inquest by P.W.16,
Revenue Divisional Officer, he has clearly recorded that there was no
dowry demand and the death of the deceased was not due to cruelty in
connection with the dowry. Further, the entire evidence of P.Ws.1, 2 and
3 when carefully perused, it is clear that the deceased left her jewels in
her parents house and it was objected by the accused. Thereafter, the
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jewels were handed over to the accused. Except this, no other aspect has
been established. The entire narration made by P.W.1 in her evidence is a
clear improvement to Ex.P.1 complaint given at the earlier point of time
to say that there was a demand of dowry and cruelty in regard to the
same, but the narration of dowry demand and cruelty aspects have been
later developed. Be that as it may.
23.It is the case of P.W.1 that on 17.08.2017, she has spoken to her
daughter and her daughter told her that the A-1 was ill treating her at the
instance of A-2. However, P.W.1 had pacified her daughter and on the
next day, when she called the deceased, she did not pick the phone and
thereafter, at 10.30 p.m., P.W.2 informed P.W.1 that A-1 told P.W.2 that
the deceased Manjula committed suicide and the deceased was taken to
the Abi S.K. hospital. Thereafter, they rushed to the house of the
deceased and at that time, the dead body was in the house. On seeing the
injury on the neck, there arose some suspicion. After all the relatives
came, they had a discussion and gave Ex.P.1 complaint to the police.
24.The entire evidence of P.W.1 when carefully perused, it is seen
that P.W.1 has projected as if there was a dowry demand from the
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accused and the same has been negatived by P.W.16 during his enquiry
and the accused has not faced any trial with regard to the dowry demand
and the cruelty with regard to the same. The specific charge against the
accused was under sections 120B and 302 IPC and also under sections
203 and 498A IPC. Therefore, it is clear that the charge against the
accused for dowry demand has not been established by the prosecution.
Be that as it may. The evidence of P.W.1 when carefully looked into, it is
clearly indicated that they suspected some foul play and gave a complaint
on the next day. P.W.2 also in his evidence has clearly stated that A-1
had only informed him that her sister, namely, deceased committed
suicide and therefore, A-1 took her to the Abi S.K.hospital and after the
death was confirmed in the hospital, the body was brought to the house.
The evidence of P.W.1 when further carefully perused would indicate
that A-1 in fact has met with an accident on 24.07.2017 and his right
hand got fractured and he was taking treatment in Ganga hospital at
Coimbatore. The evidence of P.W.1 in her cross examination indicates
that A-1 met with an accident on 24.07.2017 and he was treated for
fracture and had been placed bandage using plaster cast on his right hand
in the Ganga Hospital, Coimbatore. It was further asserted in her cross
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examination as follows:
'03/07/2017f;Fg; gpwF vdJ kfs; ,wf;Fk;
tiu ehd; vd; kUkfd; tPl;ow;F nghftpy;iy
vd;why; vdJ kUkfDf;F if cile;jnghJ
ghh;f;fg;nghndd;/'
The above evidence makes it clear that A-1 has got a fracture on his right
hand just 25 days prior to the alleged occurrence.
25.It is the evidence of P.W.6 that on 18.08.2017, on getting the
phone call from A-1, he rushed to the spot immediately and took the
deceased to the hospital along with A-1. His evidence clearly shows that
immediately, they rushed the deceased to the S.K. Hospital and the
deceased was examined in the car itself and was declared dead and
therefore, they took the deceased to M.R.S hospital and as it was
informed that the deceased died, the body was brought to the house. His
evidence also clearly shows that A-1 has fractured his right hand and had
bandage in his hand. His further evidence would indicate that during
night on the same day at 1.30 a.m., the police came there, took the body
of deceased to the hospital and also took custody of A-1 and A-2 on the
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same day and they were taken to the police station.
26.P.W.7, who is a close relative of the deceased, in his evidence
during cross examination has stated that the A-1 and deceased were
affectionate and his evidence also clearly shows that on the date of
occurrence, A-1 and A-2 were taken to the police station on the same
day. P.W.7 in fact is the relative of the deceased and there was no need
for him to give a false evidence about the police taking A-1 and A-2 to
the custody on the same day. His evidence clearly support the version of
P.W.6. Therefore, the prosecution theory that A-1 appeared before the
VAO P.W.8 at 02.00 p.m. on 21.08.2017 and gave the extra judicial
confession Ex.P.3 narrating the alleged incident is highly doubtful. When
the close relative of the deceased and the person who has rushed to the
spot immediately on the occurrence day have clearly stated that on the
same day, i.e., on 18.08.2017 itself A-1 and A-2 were taken to police
custody, therefore, the theory of the prosecution that A-1 appeared before
the P.W.8 VAO and gave the extra judicial confession is highly doubtful.
We are unable to believe the story of the prosecution with regard to the
extra judicial confession.
27.The fact that the A-1 taking the deceased to the hospital
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immediately on the same day when she died was also spoken to by
P.W.11 medical officer attached to Abi S.K. Hospital. The prosecution
has examined P.W.13, the Assistant Director working in the Forensic
Science department. According to her on 19.08.2017, she visited the
place of occurrence and also inspected the fan which was used for
hanging. According to her, there was no damage to the ceiling fan and
the dust was very much available in the fan; the cup and doom of the fan
were also found with dust and there was no indication that the fan is
being used for committing suicide. She has also issued certificate Ex.P.8
in this regard. It is relevant to note that Ex.P.8 though is stated to have
been given by P.W.13 on 20.08.2017, when it is seen carefully, it comes
to light that it has been despatched to Court only on 23.10.2017 and
further it reached the court on 05.12.2017 with an inordinate delay. This
fact also creates some doubt in preparing Ex.P.8. Further, when the
evidence of P.W.13 is analysed carefully, it is seen that as to how P.W.13
could identify the fan which was used for hanging, is not clearly stated
and she feign ignorance with regard to the same. She has further stated in
her cross examination that the fan was in the height of 6 feet and it was
also admitted that a person who is 5-1/2 feet height can easily reach the
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fan which is above 6 feet, Further, she has also stated that she did not
know as to whether the fan is in working condition or not. The evidence
of P.W.13 appears to be very artificial in nature. In her cross
examination, P.W.13 has stated that the fan is situated in the height of 6
feet from the bottom, whereas from the observation mahazar Ex.P.2
prepared by the investigating officer, it is seen that the fan was situated
in a reaper which is situated 14 feet height from the ground and the fan is
situated in the height of 8 feet from the ground. This fact creates a
serious doubt about the veracity of Ex.P.2 observation mahazar and this
has been relied on by the prosecution to show that the deceased could not
have reached the ceiling fan to commit suicide but the evidence of
P.W.13 and Ex.P.2 observation mahazar speak contrary to each other.
According to P.W.13, the fan is found at the height of 6 feet, whereas in
the observation mahazar, it is shown that it is situated at the height of 8
feet.
28.It is also the case of the prosecution that the door was not
locked from inside but in this regard, the evidence of P.W.5, VAO, who
is the witness for observation mahazar and rough sketch, clearly shows
that if the the door in that room is not locked, one could go inside if one
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pushed the door. This fact also creates some doubt about the very nature
of the prosecution. It is the specific case of the prosecution that M.O.1
iron box with cable has been used to strangulate the deceased. This court
has carefully examined M.O.1 and it is seen that the iron box is attached
with cable on one hand and at the other end of the cable with three pin
plug. If really the iron box with cable has been used, there must be at
least injury around the neck which is found missing, whereas contusion
is found only on the right and left side of the neck and no injury
whatsoever is found around the neck and back of the neck. Admittedly, it
is the case of the prosecution that the iron box with cable and three pin
plug has been used for strangulation. In such a case, either the iron box
or the three pin plug in the iron box should have caused some injury if it
had some contact with the neck but no such injury whatsoever was
found by the medical officer.
29.Further, it is the specific case of the prosecution that only A-1
had strangulated while the deceased was sleeping, but admittedly, the
right hand of A-1 had got fractured and he had bandage of plaster cast on
his right hand and therefore, the prosecution theory that A-1 has used the
iron box cable for strangulating the deceased is highly improbable and
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creates a serious doubt. Further, the doctor has also opined as if the cable
in the iron box contained some dirt of the neck. In such a case, at least
the iron box should have been subjected to forensic examination to find
out if any skin part of the deceased is found in the iron box cable but the
prosecution has not made out any attempt to conduct such forensic
examination to unearth the truth with regard to the alleged incident. If it
is a case of strangulation, the ligature mark would be horizontal or
transverse continuous, round the neck, low down in the neck below the
thyroid, the base of the groove or furrow being soft and reddish.
Admittedly, no injury whatsoever is noted by the medical officer round
the neck, whereas ligature mark found by the medical officer is extended
from centre to right neck and between chin and larynx. No doubt, a
abrasion on the back of the body was found. We are of the view that
merely because there is abrasion on the back of the body, we cannot
come to a conclusion that it is a clear case of strangulation. Such
abrasion could also be possible while the deceased's body was brought
down and kept on the floor and the deceased was also taken to not only
one hospital but two hospitals immediately. Therefore, the possibility of
getting such abrasion also cannot be ruled out. No doubt, saliva has not
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come out from the mouth and no saliva whatsoever was found near the
neck. The explanation of the accused clearly indicates that annoyed over
the questioning of the A-1 to the deceased about the frequent calls to a
third party, she went inside the house and A-1 was with the child outside
of the house. After hearing sound from inside home, A-1 immediately
rushed to the spot and raised voice. A-2 and neighbours came and
brought down the deceased. There is absolutely no evidence with regard
to the aspect that if within such a short span of time, whether saliva will
come out or not. The evidence of the medical officer has not explained
this aspect. Therefore, we are of the view that the prosecution has not
established the clear case of strangulation. Though the post mortem
doctor has not explained anything in his post mortem report, he has given
an opinion only based on the report from the chemical examiner. The
medical officer has opened that the deceased would appear to have died
of asphyxia due to violent compression of neck by ligature strangulation.
In his post mortem certificate, he was not in a position to give the
opinion and the report from the forensic science department came only
on 06.10.2017 and based on that, he has given the opinion. Be that as it
may.
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30.Admittedly, A-1 has got fracture on his right hand and if
strangulation has happened using the iron box with cable and when at the
other end of the cable, the three pin plug is available, then there must be
at least some injuries around the neck which is totally absent. Therefore,
we are unable to accept the prosecution case of homicidal violence which
creates a serious doubt. Though the evidence of post mortem doctor
indicates and gives a view as if there is homicidal violence, the other
view that the strangulation would not have been caused, as discussed
above, is also available. Therefore, when there are two views possible,
the one view which is in favour of the accused has to be accepted. This is
the fundamental of criminal jurisprudence. No doubt, when any such
occurrence has happened and when it has happened inside the house
where the husband and wife alone are available, it is for the accused to
explain what has transpired inside between them on the particular date
and time. It is for the accused to explain what has transpired on the date
of the occurrence. In the absence of any explanation by the accused to
explain any fact which is especially within the knowledge of the accused,
it also gives additional link against him but at the same time, to apply
that presumption as against the accused, the prosecution must have
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proved clinchingly the foundational facts and the same should have been
clearly established by the prosecution that it is only the homicidal death.
Therefore, the accused cannot be directed to discharge the initial burden
under section 106 of the Evidence Act, 1872 in a given case. Further, the
accused has also clearly explained the circumstances under which the
deceased committed suicide.
31.In the written statement filed under section 313 Cr.P.C., it has
been clearly stated that the deceased used to speak to P.W.9 Dinesh and
he has also sent messages, for which A-1 has warned the deceased many
times. Despite the same, she continued to speak to P.W.9. On 18.08.2017
also, she was speaking with P.W.9 in the cell phone. When questioned by
the A-1, the deceased did not answer properly. Therefore, the A-1
scolded her. Annoyed by the same, she went inside the room. Thereafter,
A-1 took the child and went out. On hearing the sound from inside, A-1
rushed to the spot and found that the deceased was hanging with rope. A-
2 and others rushed to the spot and they brought the deceased down and
kept the body on the floor. Immediately, they all took the deceased to
hospital. When the above statement is carefully considered with the
evidence of P.W.9 and the investigating officer, the explanation of the
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accused is more plausible. P.W.9 Dinesh was examined. His evidence
clearly indicates that the deceased and P.W.9 were schoolmates and they
studied upto 10th standard together and on 31.07.2017, he has also sent
whatsapp to deceased 'Hai, how are you'. Though after marriage, he did
not maintain relationship, the deceased again met him with regard to loan
transaction. His cross examination clearly indicates that he has spoken to
the deceased and he is also aware of the number of the deceased. He has
also admitted that the details with regard to the call summary was taken
by the police. P.W.19 has admitted that he obtained call details of P.W.9
and deceased but having been obtained the call details, he has not filed
the same before the court for the reasons best known to him. When
P.W.9 himself indicates that there was some message sent by him in
whatsapp and when the explanation offered by the accused is also
probable, coupled with the fact that the call details have been suppressed
and has not been filed before the court, as discussed above, this court is
of the considered view that A-1 strangulated the deceased by using
M.O.1 is highly improbable. Further despite the opinion of the doctor
that he has found some dirt on the M.O.1 iron box cable, for the reasons
best known to the investigating officer, the same was not subjected to
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forensic examination to find out if any body parts or tissues of deceased
are found in the M.O.1. Therefore, this also causes some doubt on the
prosecution case. The conduct of A-1 appears to be normal and he only
informed P.W.2 at the first instance about the occurrence and
immediately, rushed the deceased to the hospital. This conduct does not
indicate any attempt by the A-1 to abscond or to hide the evidence.
Therefore, the conduct of the A-1 was normal and shows his bona fide
conduct.
32.It is relevant to refer to a decision of Hon'ble Supreme Court in
Shambu Nath Mehra v. State of Ajmer reported in (1956) 1 SCC 337
with regard to the burden of proof in the light of Section 106 of the
Evidence Act, 1872 and the relevant paragraphs in this regard are
paragraphs 11 and 13 which read as follows:
'11. This lays down the general rule that in a criminal case
the burden of proof is on the prosecution and Section 106
is certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish
facts which are “especially” within the knowledge of the
accused and which he could prove without difficulty or
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inconvenience. The word “especially” stresses that. It
means facts that are pre-eminently or exceptionally within
his knowledge. If the section were to be interpreted
otherwise, it would lead to the very startling conclusion
that in a murder case the burden lies on the accused to
prove that he did not commit the murder because who
could know better than he whether he did or did not. It is
evident that that cannot be the intention and the Privy
Council has twice refused to construe this section, as
reproduced in certain other Acts outside India, to mean that
the burden lies on an accused person to show that he did
not commit the crime for which he is tried. These cases are
Attygalle v. R. [Attygalle v. R., 1936 SCC OnLine PC 20 :
AIR 1936 PC 169] and Seneviratne v. R. [Seneviratne v.
R., 1936 SCC OnLine PC 57 : (1936) 44 LW 661]
13. We recognise that an illustration does not exhaust the
full content of the section which it illustrates but equally it
can neither curtail nor expand its ambit; and if knowledge
of certain facts is as much available to the prosecution,
should it choose to exercise due diligence, as to the
accused, the facts cannot be said to be “especially” within
the knowledge of the accused. This is a section which must
be considered in a commonsense way; and the balance of
convenience and the disproportion of the labour that would
be involved in finding out and proving certain facts
balanced against the triviality of the issue at stake and the
ease with which the accused could prove them, are all
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matters that must be taken into consideration. The section
cannot be used to undermine the well-established rule of
law that, save in a very exceptional class of case, the
burden is on the prosecution and never shifts. '
(Emphasis supplied)
33.In State of Madhya Pradesh v. Balveer Singh reported in 2025
LiveLaw (SC) 243, the Hon'ble Supreme Court has held as follows :
“75.Thus, from the aforesaid decisions of this Court,
it is evident that the court should apply Section 106 of the
Evidence Act in criminal cases with care and caution. It
cannot be said that it has no application to criminal cases.
The ordinary rule which applies to criminal trials in this
country that the onus lies on the prosecution to prove the
guilt of the accused is not in any way modified by the
provisions contained in Section 106 of the Evidence Act.
76.Section 106 cannot be invoked to make up the
inability of the prosecution to produce evidence of
circumstances pointing to the guilt of the accused. This
section cannot be used to support a conviction unless the
prosecution has discharged the onus by proving all the
elements necessary to establish the offence. It does not
absolve the prosecution from the duty of proving that a
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crime was committed even though it is a matter specifically
within the knowledge of the accused and it does not throw
the burden on the accused to show that no crime was
committed. To infer the guilt of the accused from absence of
reasonable explanation in a case where the other
circumstances are not by themselves enough to call for his
explanation is to relieve the prosecution of its legitimate
burden. So, until a prima facie case is established by such
evidence, the onus does not shift to the accused.
77.Section 106 obviously refers to cases where the
guilt of the accused is established on the evidence produced
by the prosecution unless the accused is able to prove some
other facts especially within his knowledge which would
render the evidence of the prosecution nugatory. If in such
a situation, the accused offers an explanation which may be
reasonably true in the proved circumstances, the accused
gets the benefit of reasonable doubt though he may not be
able to prove beyond reasonable doubt the truth of the
explanation. But if the accused in such a case does not give
any explanation at all or gives a false or unacceptable
explanation, this by itself is a circumstance which may well
turn the scale against him. In the language of Prof.
Glanville Williams:
“All that the shifting of the evidential burden does at the
final stage of the case is to allow the jury (Court) to take
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into account the silence of the accused or the absence of
satisfactory explanation appearing from his evidence.”
(Emphasis supplied)
78.To recapitulate the foregoing : What lies at the
bottom of the various rules shifting the evidential burden or
burden of introducing evidence in proof of one’s case as
opposed to the persuasive burden or burden of proof, i.e.,
of proving all the issues remaining with the prosecution
and which never shift is the idea that it is impossible for the
prosecution to give wholly convincing evidence on certain
issues from its own hand and it is therefore for the accused
to give evidence on them if he wishes to escape. Positive
facts must always be proved by the prosecution. But the
same rule cannot always apply to negative facts. It is not
for the prosecution to anticipate and eliminate all possible
defences or circumstances which may exonerate an
accused. Again, when a person does not act with some
intention other than that which the character and
circumstances of the act suggest, it is not for the
prosecution to eliminate all the other possible intentions. If
the accused had a different intention that is a fact
especially within his knowledge and which he must prove
(see Professor Glanville Williams—Proof of Guilt, Ch. 7,
page 127 and following) and the interesting discussion—
para 527 negative averments and para 528 — “require
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affirmative counter-evidence” at page 438 and foil, of
Kenny’s outlines of Criminal Law, 17th Edn. 1958.”
34.In Pradeep Kumar Vs. State of Chhattisgarh reported in
(2023) 5 SCC 350, the Hon'ble Supreme Court has held that where heavy
reliance is placed on circumstantial evidence, when two views are
possible, one pointing to the guilt of the accused and the other towards
his innocence, the one which is favourable to the accused must be
adopted. Paragraph 27 of the above decision in this regard is as follows:
'27. It is important to note that the cardinal principles in the
administration of criminal justice in cases where heavy
reliance is placed on circumstantial evidence, is that where
two views are possible, one pointing to the guilt of the
accused and the other towards his innocence, the one which
is favourable to the accused must be adopted. [Kali
Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2
SCC 808 : 1973 SCC (Cri) 1048] ] '
35.Therefore, this court is of the considered view that the
prosecution has not proved its case of homicidal violence beyond
reasonable doubt. The evidence with regard to the extra judicial
confession of A-1 given before P.W.8 is not believable in the light of the
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evidence of P.Ws.6 and 7. They have stated in their evidence that the
police came to the house of A-1 on the date of occurrence and has taken
custody of both A-1 and A-2. When that being the case, the extra judicial
confession of A-1 is improbable and is highly doubtful. There are
contradictions in the evidence of P.W.13 and in Ex.P.2 observation
mahazar with regard to the height in which the fan is fixed and therefore,
the veracity of Ex.P.2 is doubtful. Besides, the case of the prosecution
that A-1 has strangulated the deceased is also highly improbable because
of the fact that A-1 suffered a fracture on his right hand few days prior
the the date of occurrence and had a bandage in his right hand. The fact
that A-1 had a bandage on his right hand on the date of occurrence was
spoken to by the evidence of P.W.6 in the cross examination and
therefore, the theory of the prosecution relating to the strangulation of
deceased by A-1 is improbable. As per the prosecution, the iron box with
cable was used for strangulation and dirt of the skin was also found in
the iron box cable. If that is so, the iron box with cable should have been
subjected to scientific examination to find out the truth. But for the
reasons best known to him, the investigating officer has failed to do so.
The explanation offered by A-1 in section 313 Cr.P.C. questioning is
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found probable when it is considered with other materials on record and
it is consistent with normal human conduct. It is coupled with the other
conduct of A-1 who has immediately informed about the commission of
suicide by the deceased to the relatives of the deceased and taking the
deceased to two hospitals, shows the natural behaviour of A-1 and it also
shows that he has not made any attempt to conceal the offence. So, this
conduct of the accused must also be weighed in favour of the accused.
36.In view of the above discussions and the case laws, this court is
of the considered view that when there are two views available, i.e., one
for strangulation and the other one for hanging, the view in favour of the
accused should be accepted and the accused has to be necessarily given
the benefit of doubt.
37.In the light of the above, this court does not find any merit in
the contentions of the appellant in both the criminal appeals and both
criminal appeals are liable to be dismissed. The judgment of conviction
and sentence imposed by the trial court dated 25.09.2018 made in
S.C.No.2 of 2018 is confirmed. Both the criminal appeals are dismissed.
There shall be no order as to costs.
(N.S.K., J.) (M.J.R., J.)
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31.10.2025
Index : Yes
Speaking Order
Neutral Citation : Yes
vvk
To
1.The Sessions Judge,
(Fast Track Mahila Court),
Erode
2.Inspector of Police,
Kadathur Police Station,
Erode District
3.The Public Prosecutor,
Madras High Court,
Chennai.
N.SATHISH KUMAR, J.
and M.JOTHIRAMAN, J.
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