# SUBRAMANIAM v. STATE OF TAMIL NADU & ANR

- **Citation:** [2009] 9 S.C.R. 725
- **Court:** Supreme Court of India
- **Decided:** 2009-05-13
- **Case number:** Criminal Appeal No. 774 of 2006
- **Bench:** $.8. Sinha, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/subramaniam-v-state-of-tamil-nadu-anr-26249
- **Pages:** 29

## Headnote

Penal Code, 1860:
A
B
ss. 302 and 498-A - A married woman found dead in her c
matrimonial home - FIR against husl:u~nd for Qffence$
punishal:)le ulss 302, 498-A /PC ~md s.4 of [)owry PrqhJ!Jition
Act - Acquittal by trial court - Cqnviction by High Court -
HELD: Circumstances brought on record by prosecution are
not such which would lead to a definite conclusion that it was
0
t,
only the accused who cummitted the offence - Failure to
prove plea of alibi may not be sufficient to record a finding of
guilt - High Court in an appeal against acquittal could not
have interfered if two views were possible - Judgment of trial
court cannot be said to be unreasonable or perverse -
E
Judgment of High Court set aside - Circumstantial evidence
- Appeal against acquittal .
•
"'
1
The accused-appellant was prosecuted for
commission of offences punishable u/ss 498-A and 302
IPC as also u/s 4 of the Dowry Prohibition Act, 1961. The
F
wife of the accused was found dead in her matrimonial
home at 1.1,00 P.M. on 26.5.1999. On the request of the
accused, PW-3 went to the house of his in-laws (PW-1 and
PW-2) to inform them, and they reached the place of
~
. i_ncident at about 9.00 A.M. in the following morning. On
G
'
the basis of a written report alleging that the deceased
was subjected to cruelty and/or harassment at the hands
of her husband and in-laws, as sufficient dowry was not
given in her marriage, an FIR was lodged at about 11.00
725
H
726
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A A.M. The trial court acquitted the accused of all the
~
charges. On appeal by the State, the High ~ourt
maintaining the acquittal of the accused u/s 498-A IPC
and s.4 of the Dowry Prohibition Act, convicted and
sentenced him u/s 302 IPC.
B
In the appeal filed by the accused, it was contended
for the appellant that the death of his wife could not have
been caused by smothering as was tried to be proved by
+
the prosecution; that the circumstances relied upon by
c High Court did not form a complete linkin the chain to
arrive at the guilt of the appellant; and that the police
having already reached the place of occurrence early in
the morning as per evidence of PW-2 and PW-3, no
reliance could be placed on the FIR which was lodged
D
by PW-1 at 11.00 A.M. in the police station. The
respondent-State contended that the High Court rightly
convicted the accused hc:ding that the deceased having
)
died on unnatural death and both the husband and the
wife living together and were last seen together, it was
for the accused to explain as to how his wife died, a.nd
E that the plea of alibi taken by the accused was not proved.
Allowing t"e appeal, the Court
HELD: 1. Though the doctor (PW-10) who conducted
f
the autopsy, state in her report that the death was caused
I
~
F by asphyxia, may be due to smothering, but in her cross
examination she admitted that no symptoms of asphyxia
were found. Besides, no evidence of violence was found
in the shape of external marks surrounding the mouth
and nostrils or inside the mucosal surface, or on the
G chest. The expert should have been forthright in her view
in regard to the cause of death. A different canclusion
Iwas required to be arrived at keeping in view the fact that
'r
a large number of symptoms, which ordinarily point out
to the cause of death of asphyxia by smothering were
H
- .
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 727
absent. In the circumstances, the Sessions Judge rightly A
opined that death might not have been caused by
asphyxia, [Para 6, 8 and 10] [734-F-G; 738-G; 739-G-H;
740-A-B]
Mohd. Zahid vs. State of T.N. 1999 SCC (Crl.) 1066,
B
relied on.
<~
;
State of Himachal Pradesh vs. Jeet Singh (1999) 4 SCC
370, referred to.
Modi's Medical Jurisprudence and Toxicology, 23rd c
Edition, referred to.
2.1. So far as the circumstance that the deceased and
the accused had been living together is concerned,
indisputably, the entirety of the situation should be taken
into consideration. Ordinarily, when husband and wife are
D
stated t

## Text

_Characters 0–39,932 of 52,335. This is a partial read: ask again with offset=39932 for what follows._

[2009] 9 S.C.R. 725
SUBRAMANIAM
v.
STATE OF TAMIL NADU & ANR.
(Criminal Appeal No. 774 of 2006)
MAY 13, 2009
[$.8. SINHA AND CYRIAC JOSEPH, JJ.]
Penal Code, 1860:
A
B
ss. 302 and 498-A - A married woman found dead in her c
matrimonial home - FIR against husl:u~nd for Qffence$
punishal:)le ulss 302, 498-A /PC ~md s.4 of [)owry PrqhJ!Jition
Act - Acquittal by trial court - Cqnviction by High Court -
HELD: Circumstances brought on record by prosecution are
not such which would lead to a definite conclusion that it was
0
t,
only the accused who cummitted the offence - Failure to
prove plea of alibi may not be sufficient to record a finding of
guilt - High Court in an appeal against acquittal could not
have interfered if two views were possible - Judgment of trial
court cannot be said to be unreasonable or perverse -
E
Judgment of High Court set aside - Circumstantial evidence
- Appeal against acquittal .
•
"'
1
The accused-appellant was prosecuted for
commission of offences punishable u/ss 498-A and 302
IPC as also u/s 4 of the Dowry Prohibition Act, 1961. The
F
wife of the accused was found dead in her matrimonial
home at 1.1,00 P.M. on 26.5.1999. On the request of the
accused, PW-3 went to the house of his in-laws (PW-1 and
PW-2) to inform them, and they reached the place of
~
. i_ncident at about 9.00 A.M. in the following morning. On
G
'
the basis of a written report alleging that the deceased
was subjected to cruelty and/or harassment at the hands
of her husband and in-laws, as sufficient dowry was not
given in her marriage, an FIR was lodged at about 11.00
725
H
726
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A A.M. The trial court acquitted the accused of all the
~
charges. On appeal by the State, the High ~ourt
maintaining the acquittal of the accused u/s 498-A IPC
and s.4 of the Dowry Prohibition Act, convicted and
sentenced him u/s 302 IPC.
B
In the appeal filed by the accused, it was contended
for the appellant that the death of his wife could not have
been caused by smothering as was tried to be proved by
+
the prosecution; that the circumstances relied upon by
c High Court did not form a complete linkin the chain to
arrive at the guilt of the appellant; and that the police
having already reached the place of occurrence early in
the morning as per evidence of PW-2 and PW-3, no
reliance could be placed on the FIR which was lodged
D
by PW-1 at 11.00 A.M. in the police station. The
respondent-State contended that the High Court rightly
convicted the accused hc:ding that the deceased having
)
died on unnatural death and both the husband and the
wife living together and were last seen together, it was
for the accused to explain as to how his wife died, a.nd
E that the plea of alibi taken by the accused was not proved.
Allowing t"e appeal, the Court
HELD: 1. Though the doctor (PW-10) who conducted
f
the autopsy, state in her report that the death was caused
I
~
F by asphyxia, may be due to smothering, but in her cross
examination she admitted that no symptoms of asphyxia
were found. Besides, no evidence of violence was found
in the shape of external marks surrounding the mouth
and nostrils or inside the mucosal surface, or on the
G chest. The expert should have been forthright in her view
in regard to the cause of death. A different canclusion
Iwas required to be arrived at keeping in view the fact that
'r
a large number of symptoms, which ordinarily point out
to the cause of death of asphyxia by smothering were
H
- .
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 727
absent. In the circumstances, the Sessions Judge rightly A
opined that death might not have been caused by
asphyxia, [Para 6, 8 and 10] [734-F-G; 738-G; 739-G-H;
740-A-B]
Mohd. Zahid vs. State of T.N. 1999 SCC (Crl.) 1066,
B
relied on.
<~
;
State of Himachal Pradesh vs. Jeet Singh (1999) 4 SCC
370, referred to.
Modi's Medical Jurisprudence and Toxicology, 23rd c
Edition, referred to.
2.1. So far as the circumstance that the deceased and
the accused had been living together is concerned,
indisputably, the entirety of the situation should be taken
into consideration. Ordinarily, when husband and wife are
D
stated to have remaineJ within the four walls of a house
and the death of wife by homicide takes place, it will be
for the husband to explain the circumstances in which
she might have died. However, although the same may
be considered to be a strong circumstance but that by
E
alone in absence of any evidence of violence on the
deceased cannot be held to be conclusive. It may be
difficult to arrive at a conclusion that the husband and
none else was responsible therefor. [Para 14] [743-F-H]
Sharad Birdhichand Sarda vs. State of Maharashtra
[(1984) 4 sec 116; Mohd, Zahid vs. State of T.N. 1999 sec
(Crl.) 1066; Vinay D. Nagar vs. State of Rajasthan (2008) 5
SCC 597 and K. T. Palanisamy vs. State of Tamil Nadu
F
[(2008) 3 sec 100, relied on.
G
Trimukh Maroti Kirkan vs. State of Maharashtra (2006)
10 SCC 681 and Ponnusamy vs. State of Tamil Nadu (2008)
5 sec 587, distinguished.
'
2.2. In the instant case, there was no mark of H
728
SUPREME COURT REPORTS
[2009] 9 S.C.R.
_,f.--
A violence. The appellant has been found to be wholly
innocent, So far as the charges u/s 498A IPC or s.4 of the
Oowry Prohibition Act are concerned, the evi51ence of the
parents of the deceased (P.W. 1 and P.W. 2) as also the
mediator~ (P.Ws. and 5) have been disbelieved by both
8 the courts below. That part of the prosecution story
suggesting strong motive on the part of the appellant to
commit the murder, thus, has been ruled out. [Para 17]
[746-E-G]
c
Mohd. Zahid vs. State of T.N. 1999 SCC (Crl.) 1066,
relied on.
3.1. Another circumstance which had weighed with
...
ttie High Court was inability on the part of the appellant
t<? pn>ve hi~ defence ~li~i as s@ted in his examination u/
D s 313 of the Code of Criminal Procedure, 1973 to the
effect that on the fateful r.ight he was out in connection
J
with irrigating his field and reached home at around 5.00
A.M. The finding of the High Court that appellant had to
prove title of his land ex facie is incorrect. P.W. 1
E categorically stated that appellant had three acres of land
P.W. 3 also accepted that-land of the appellant is almost
by the side of his land. In view of the admission made by
the prosecution witnesses, the High Court committed a
iserious error in arriving at a conclusion that he did not
I -J
F possess any land whatsoever. Even assuming that the
appellant did not have any land and he in fact went to
P.W. 3 for the purpose of taking his wife to hospital may
not be itself be a ground for holding him guilty. Failure
to prove the plea of alibi and/or giving of false evidence
G itself may not be sufficient to arrive at a verdict of guilt; it
may be an additional circumstance. But, before such
i--
additional circumstance is taken into consideration, the
....
prosecution must prove all other circumstances' to prove
his guilt. [Para 22 and 23] [749-G; 750-B-C, E-H; 751-A]
H
3.2. Actmittedly, a plastic bottle was found near the
t,
t
i
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 729
3.2. Admittedly, a plastic bottle was found near the
A
cot. The possibility that having. seen the bottle which
admittedly at one point of time contained some poison,
appellant's assuming that the deceased had consumed
poison, and rushing to the house of the P.W. 3 who might
have been in a position to make arrangement for shifting
B
her to hospital cannot be ruled out. In so assuming, he
might have committed a mistake but it is also difficult to
arrive at a definite conclusion that only because a plastic
bottle was found, the appellant must have deliberately
kept it so as to raise a false plea. Such a conclusion c
would amount to surmise and conjecture. [Para 27] [752E-G]
4. As regards the FIR, according to FW. 2, police had
already arrived when they reached at the place of
occurrence on the next day morning. P.W. 11 the SubD
Inspector, in his evidence could not say at what time he
arrived at the place of occurrence when a pointed
question was put to him. The police must have received
some information. Why the other information was
suppressed by the prosecution has not been explained.
E
In a situation of this nature particularly if an FIR was
lodged after recording the statements of the witnesses,
another FIR would not be admissible in evidence and
ordinarily an investigation cannot be started without
recording the FIR. [Para 24 and 25] [751-8-H; 752-A-B]
F
Mohar Singh vs. State of Rajasthan & Ors. (1998) 9 SCC
654, relied on.
5. The High Court was considering a judgment of
acquittal; it set aside a part of the finding of the Sessions
G
Judge. It could not have interfered with the judgment of
acquittal if two views were possible. The judgment of the
Sessions Judge cannot be said to be wholly
unreasonable or otherwise perverse. Circumstances
H
730
SUPREME COURT REPORTS
[2009] 9 S.C.R.
+-
A br9ught on record by the prosecution are not such which
would lead to a definite conclusion that appellant and
none else had committed the offence. In such a situation,
the High Court should have approached the case with
some caution. The Judgment of the High Court cannot
B be'.sustained and is set aside. [Parii 27 and 29] [752-G-H;
753-A, D]
K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258,
relied on.
c
Case Law Reference:
1999 sec (Crl.) 1066
relied on
Para 12
-!
. (1999) 4 sec 370
referred to
Para 13
D
(20P6) 10 sec 681
distinguished
Para 15
(2008) 5. sec 587
distinguished
Para 16
.1
(1984) 4 sec 116
relied on
Para 19
(2008) s sec 597
relied on
Para 20
E
(2008) 3 sec 1 oo
relied on
Para 21
(1998) 9 sec 654
relied on
Para 26
·-f·
(2008) 1 sec 258
relied on
Para 28
I
t
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 77 4 of 2006.
From the Judgment & Order dated 15.12.2005 ofthe High
G
Co$rt of Judicature at Madras in Criminal Appeal No. 788 of
20 · 1 and Criminal Revision Case No. 264 of 2001.
+
Dhruv Mehta, S. Balaji, V.N. Subramanian, Madhusmita
-
Bo'ra and P.V. Yogeswaran for the Appellants.
V. Karangaraj, S. Thananjayan, N. Sheba, Sri. Ram J. and
H' T~alapapathy for the Respondents.
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 731
-t
The Judgment of the Court was delivered by
A
S.B. SINHA, J.1. Appellant got married with Baby alias
Sokkayyal ("the deceased") in the year 1996 at village
Thallakuttaipudur. After the marriage, they were living at Village
Ennamangalam. The deceased was found dead in her B
matrimonial home on 26.5.1999 at about 11 :00 p.m. On the
-j.
request of the appellant, Chinnaraj (P.W. 3) went to the village
Thallakuttaipudur, which is said to be situated at a distance of
18 miles from village Ennamangalam, to inform the parents of
the deceased. They arrived at about 9:00 a.m. in the next c
morning.
-.,.,
The First Information Report (for short, "FIR") was lodged
in regard to the aforementioned incident at about 11 :00 a.m.
in Vellithiruppur police station. The FIR is based on a written
report wherein it was alleged that the deceased was subjected D
t
to cruelty and/or harassment at the hands of her husband and
in-laws as sufficient dowry had not been given in her marriage.
It was furthermore alleged that as the demand of dowry could ·
not be met, a blank promissory note was executed by him on
affixation of a revenue stamp. On the basis of the said E
information, FIR was lodged against the accused for
commission of offences punishable under Sections 498A and
..
302 of the Indian Penal Code (for short, "the IPC") as also under
f
Section 4 of the Dowry Prohibition Act.
2. Before the learned Sessions Judge, fourteen witnesses F
were examined by the prosecution in support of its case. P.W.1
- Muthusamy and P.W. 2 - Easwari are the parents of the
deceased; P.W.3 - Chinnaraj had been residing close to the
house of the appellant. He knew the appellant as well as the
-.Ideceased; P.W.4 - Sakthivel and P.W. 5 - Senniappan were G
examined by the prosecution to prove that when the deceased
had been staying with her parents about three months prior to
the date of occurrence, a compromise was allegedly entered
into in the house of P.W. 1 for the purpose of bringing her back
to her matrimonial home. P.W. 6 - Thiru Karunakaran is the
H
,,,
732
SUPREME COURT REPORTS
[20091 9 s'.c.R.
+
A Village Administrative Officer who witnessed preparation of the
Observation Mahazar and the recovery of the material objects
M.Os.1 and 2.
P.W. 7-Charles Mohan is a photographer, who had taken
8
photographs of the scene of occurrence. P.W.8 -Anbazhagan
is Head Constable in Vellithiruppur Police Station. P.W.9 -
Ganesan is Grade II Constable inVellithiruppur Police Station.
+-
P.W. 10- Dr. Ranjini who did post-mortem on the dead body;
P.W. 11 - Sivakurnar is a Sub-Inspector of Police; P.W.12 -
c Srinivasan conducted inquest on the dead body; P.W. 13 -
Manoharan is Superintendent of Police in the Madurai Civil
Supply CID Section. P.W. 11 and P.W 13 are the Investigating
Officer. P.W.14 - Muthusamy is Deputy Superintendent of
~
Police who later succeeded P.W.13.
D
3. The learned Sessions Judge by a judgment and Order
dated 14.11.2000 recorded a judgment of acquittal in favour
.1
of appellant. The State preferred an appeal thereagainst. By
!
reason of the impugned judgment dated 15.12.2005, the High
Court while affirming the view of the trial court with regard to
E
the order of acquittal of appellant of the charges under Section
498A of the IPC and Section 4 of the Dowry Prohibition Act,
however, recorded a judgment of conviction and sentence
against him under Section 302 of the IPC opining that its
t
findings were unreasonable.
l
F
4. Mr. Dhtuv Mehta, learned counsel appearing on behalf
of the appellant for assailing the judgment of the High Court
i
would contend:
i,
The cause of death of the deceased cannot be said
G
to have been caused by smothering.
+
r
ii.
The circumstantial evidence whereupon reliance
, has been placed by the High Court cannot be said
to have formed a complete link in the chain to arrive
at the guilt of the appellant.
..
H
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 733
[S.B. SINHA, J.]
iii.
The police having already arrived at the Village
A
Ennamangalam early in the morning had been
admitted by P.W. 2 and P.W.3, no reliance can be
placed on the FIR which was lodged by P.W.1 at
11 :00 a.m. in the police station.
5. Mr. Kanagaraj, learned Senior Counsel appearing on
behalf of the respondent, on the other hand, supported the
judgment of the High Court urging that the fact that the
deceased was a young woman and pregnant of seven months
B
and suffered an unnatural death being not in dispute, the
circumstances found favour with the High Court, namely, (1) they
C
had been living together and last seen together, (2) it was for
the appellant to give a reasonable explanation as to how she
died, and (3) the plea of alibi taken by appellant having not
been proved, no interference with the impugned judgment is
warranted.
D
6. Cause of death as stated in the post-mortem report is
as under:
"Appearances found at the Pest-Mortem:
Moderately nourished, female lies on the back, arms close
to sides, lower limbs extended hair black, skin pals, eyes
closed, lips swollen, forthy fluid discharge of blood from
mouth and nose. Abdomen distended.
EXTERNAL INJURIES - NIL
INTERNAL
1.
2.
12.
Kidneys both 160 gms. Normal
E
F
G
H
734
SUPREME COURT REPORTS
(2009] 9 S.C.R.
.....
A·
16.
Head - Normal
+ -
18.
Brain - Normal, 1200 gms.
Viscera preserved for Chemical analysis.
1 .
..
B
OPINION:-
The deceased would appear
to have died of 28 to 36 hrs. prior to autopsy. Final opinion
pending on Chemical Analysis.
~
Forensic Report: RT. 2756/99 to H. 928/99 DT. 30.06.99
c
Viscera:
1.Stomach and its contents
2. Intestine and its contents
3. Liver
4. Kidneys
D
5. Lungs
6. Preservative
:tThe above six articles were examined but poison
was not detected in any of them.
E
Opinion as to cause of death:
{a)
Reserved pending report of Viscera
(P)
The deceased would appear to have died of 28 to
--136 hrs. his prior to autopsy.
~
F
FINAL OPINION:-
The death is due to Asphyxia. May be due to
smothering."
The post-mortem report was proved by Dr. Ranjini (P.W.
G 10). In her evidence apart from proving the post-mortem report,
+
she stated:
"While a pillow like M.O. 2 were to be pressed on the face
of a sleeping person there will be opportunity for the
H
swelling lips and difficult in breathing which would result in
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR.
735
[S.B. SINHA, J.]
-+
the emproyo being affect. Further the Lungs will also get
A
affected and blood might ooze out through the mouth and
nose."
However, she in her cross examination admitted that if
death was caused by asphyxia the eyes would be open and
B
tongue would get protruded and it was likely that the right side
of the heart would be full of blood and the left side of the heart
.-.;..
would be empty. It was furthermore accepted that at the time
of death on account of asphyxia, tardien sport should be found
-----t
in the eyes and further hypacksia should be found,. i.e., the c
oxygen in the blood pertaining to the atoms would be very much
less. The face and head would also be found distended. It was
---if
furthermore stated that:
"Further there should be mucous in the mouth and throat.
Further generally at the time of asphyxia there should be
D
-11'
alveonian in the lungs and also idima polute should be
found. Further there should be camerine with kolappan with
intersenian espeomia. But the aforesaid were not found
in the dead body of the Jeceased in the absence of the
aforesaid symptoms there was no opportunity for the
E
deceased to die."
~
7. Both the learned counsel had strongly relied upon
,,.
Modi's Medical Jurisprudence and Toxicology, 23rd Edition (for
;.
short, "Modi") to support their respective cases as to whether
F
in view of absence of some symptoms as accepted by the
autopsy surgeon, death could be caused by asphyxia. We may
for the aforementioned purpose notice some passages from
Modi.
8. The learned author defines application of the term G
_ _,_
'suffocation' to that form of death that results from the exclusion
of air from the lungs, by means other than that of the
compression of the neck. One of the types of 'suffocation' is
smothering or closure of the mouth and the nostrils. With regard
to smothering or closure of the mouth and nostrils, it was stated:
H
-<
736
SUPREME COURT REPORTS
[2009] 9 S.C.R.
"Infants are often accidentally smothered by being overlaid
+
A
by their mothers when they are drunk. This is more
common among the lower classes ofwomen in England.
In India, such cas$s are rare, as infants are generally not
allowed to sleep in the same bed with their mothers, but
B
are placed in separate cradles. However, they are
sometimes smothered by inexperienced mothers who
press them too closely to the breast when suckling. A
common method of killing infants, children and weak adults
4---
is to close the mouth and the nostrils by means of the hand,
c
bedclothes, soft pillows or mud.
Cases have been recorded of adults being
accidentally smothered by plaster of paris at the time of
taking a cast or mould, or by falling face downwards into
vomited matter, flour, cement, ashes, sand or mud,
D
especially when drunk or during an epileptic fit.
Plastic bag suffocation has been reported from
f
various countries. Deaths have occurred in course of
autoerotic misadventures by use of plastic bag placed over
E
the head. Some addicts use plastic bags in a similar
manner to sniff or inhale narcotic vapours or anaesthetics.
Chemical analysis is essential in all the cases of plastic
bag asphyxia occurring in teenagers; for otherwise the
tproper diagnosis of poisoning by inhalation of narcotic
~
F
vapours may be missed. A thorough search of the scene
for the solvents (acetone, benzene, toluene, napththa,
carbon tetrachloride) should also be made and the relatives
questioned."
It was furthermore stated that choking or obstruction of the
G air-passages from within is mostly accidental. With regard to
the post-mortem appearance, it is stated:
+
"Post-mortem appearances are external and internal
H
(i) External Appearance
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 737
[S.B. SINHA, J.]
The external appearance may_ be due to the cause
A
producing suffocation, or to asphyxia.
(a) Appearance due to the Cause Producing Suffocation:
In homicidal smothering, affected by the forcible
application of the hand over the mouth and the nostrils,
B
bruises and abrasions are often found on the lips and on
the angles of the mouth, and alongside the nostrils. The
inner mucosal surface of the lips may be found lacerated
from pressure on the teeth. The nose may be flattened, and
its septum may be fractured from pressure of the hand, but c
these signs are, in Modi's experience, very rare. There may
be bruises and abrasions on the cheeks and the molar
regions, or on the lower jaw, if there has been a struggle.
Rarely, fracture or dislocation of the cervical vertebrae may
o.ccur if the neck has been forcibly wrenched in an attempt
D
at smothering with the hand. No local signs of violence will
be found, if a soft cloth or pillow has been used to block
the mouth and nostrils.
In compression of the chest, external signs of injury
may not be present, but the ribs are usually fractured on
E
both the sides. In homicidal compression of the chest
brought about by the hands or knees of a murderer or by
~
some other hard material, bruises and abrasions,
"'
symmetrical on both sides, are usually found on the skin
together with extravasation of the blood in the
F
subcutaneous tissues. Rarely, along with the ribs the
sternum is also fractured. It should, however, be
remembered that the traumatic asphyxia produces variable
findings. In a fair person, purple suffusion of skin above the
point of compression is apparent in severe fixation of the
G
+
chest by mechanical compression. There may not be any
external or internal signs where the pressure is slight or
evenly distributed.
(b) Appearance due to asphyxia: The face may be pale
or suffused. The eyes are open, the eyeballs are
H
738
SUPREME COURT REPORTS
(2009] 9 S.C.R.
'"
_...
A
prominent, and the conjunctivae are congested and
. sometimes there are petechial hemorrhages. The lips are
livid, and the tongue sometimes protruded. Bloddy froth
comes out of the mouth and the nostrils. The skin shows
punctiform ecchymoses with lividity of the limbs. Rupture
B
of the tympanum may occur from a violent effort at
respiration.
(ii) Internal Appearance
Rags, mud or any other foreign matter may be found in the
c
mouth, throat, larynx or trachea, when suffocation has been
caused by the impaction of a foreign substance in the airpassages. It may also be found in the pharynx or the
oesophagus. The mucous membrane of the trachea is
usually bright red, covered with bloody froth and
D
congested. The lungs are congested and emphysematous.
They may be lacerated or contused even without any
~
fracture of the rib, if death has been caused by pressure
on the chest. Punctiform subpleural ecchymoses (Tardieu
spots) are usually present at the root, base, and the lower
E
margins of the lungs, but they are not characteristic of
death by suffocation, as they may also be present in
asphyxia death from other causes. They are also found on
the thymus, pericardium, and along the roots of the
~·
coronary vessels. The lungs may be found quite normal, if
~
F
death has occurred rapidly. The right side of the heart is
often full of dark fluid blood, and the left empty. The blood
does not readily coagulate; hence, wound caused after
death may bleed. The brain is generally congesting, and
so are the abdominal organs, especially the liver, spleen
G
and kidneys"
~-
In his opinion, to come to a definite conclusion it is very
essential to look for evidences of violence in the shape of
external marks surrounding the mouth and nostrils or on inside
the mucosal surface, or on the chest. According to the learned
H author, circumstantial evidence should always be taken into
SUBRAMANIJ\M v. STATE OF TAMIL NADU & ANR. 739
[S.S. SINHA, J.]
consideration to establish the proof of death from suffocation.
A
In regard to the medico-legal question as to whether the
suffocation was suicidal, homicidal or accidental, the learned
author stated:
"Homicidal suffocation by pressure on the chest is
8
sometimes resorted to in India, but in the case of adults,
it is often combined with smothering or throttling, and it is
usually an act of more than one person .....
A form of homicidal suffocation practiced in Northern
India is known as 'Bansdola', although it is not so common c
now as it used to be formerly. In this form, the victim's chest
is squeezed so forcibly between two strong wooden planks
or bamboos, one being placed across the upper part of
the chest and the other across the back of the shoulders,
that the respiratory act is interfered with; the muscles are
D
~
lacerated and the ribs are fractured. If the force applied is
very severe, the lungs may be crushed and lacerated.
Burying alive used to be resorted to in India as a form
of punishment and lepers used to be sometimes buried
E
alive.
In the case of infants dying under suspicious
~
circumstances and afterwards exhumed, a question may
,..
arise as to whether they had been buried alive. The
presence of fine dust in the oesophagus and stomach is
F
a convincing proof of the infant having been buried alive.
In a burial after death, fine dust may be found in the upper
air-passages, but not in the oesophagus or the stomach.
Accidental suffocation is frequent and is produced
G
as described above and by being buried under the sand
or the earth while digging deep pits; here the respiratory
tract is packed with sand or earth."
9. We wish the expert would have been forthright in her
view in regard to the cause of death. A different conclusion was
H
740
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A required to be arrived at keeping in view the fact that a large
number of symptoms were absent which ordinarily point out to
the cause of death of asphyxia by smothering. Most of the
symptoms noticed by Modi should have remained present.
10. There was frothy fluid discharge of blood from mouth
8
and nose. However, no frothy fluid blood was found on the pillow.
c
D
E
F
G
H
It may not be imperative but that could have been a lead to a
fairly definite opinion. It is in the aforementioned situation, the
learned Sessions Judge opined that death might not have been
caused by asphyxia, stating:
"In the present case there is reasonable doubt in regard
to the cause of death of the deceased and it is not safe to
rely upon the evidence of P.W. 8 solely for the purpose of
coming to the conclusion that the deceased's death is
proved by the prosecution to be homicidal. While viewing
on that basis, P.W. 10 the Medical Officer in her evidence
had mentioned as detailed below:
Generally during the time of asphyxia the eyes will
be open and the tongue will be protruding outside. Further
the right side of the heart might be full of blood and the
left side being empty. Further at the time of asphyxia, the
kidneys also should be found distended and likewise the
brain. Generally on account of asphyxia and death is being
caused Tardien sport should be in the eyes. Further at the
time of asphyxia there should be hybakia should be found.
(Hybakia means the oxygen particles will be lesser in
number in the blood). Further the face and head will be
found distended Synochiam with numerus petichal should
be found. Further there should be mucous in the mouth and
throat. Further Generally during the time of asphyxia, there
should be alviovis and idimafluid in the lungs. Further there
should be camaris with collappus with intersavin
enpiceomia. But the aforesaid signs were not found in the
dead body and therefore there was no opportunity for the
deceased to die on account of asphyxia.
}\-..
+
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR. 741
[S.B. SINHA, J.]
11. The learned judge noticed that P.W.10 was specific
A
in her statement that paleness in the brain could not have been
noticed as it had liquefied by that time. It was also found that
P.W. 10 had deviated from her earlier opinion and stated that
it was not correct to say that no opinion of cerebral anoxia could
be given or arrived at in the case of liquefaction of the brain.
B
No saliva, blood and tissue cells were found in the pillow; no
scratches, distinct nail marks, or laceration of the soft parts of
the victim's face was noticed. It was not brought to notice that
pillow was a soft one or not. No bruising or laceration was
found in the lips, gums and tongue. The conduct of the accused c
that he had all along been present and the opinion of the Doctor
did not satisfy the tests laid down in the authoritative book of
Modi, it was held:
"Further the evidence of Medical Officer P.W. 10 having
D
mentioned that the reason for the death of the wife of the
accused was on account of asphyxia but the same is
discrepant with the Medical Book. Further in the report Ex.
P .6 no such symptom had been mentioned. Hence just
because the accused and his wife happened to be at the
same place and on that ground it cannot be said that the
E
accused had committed the aforesaid criminal offence as
mentioned on behalf of the prosecution."
--f.
12. The High Court, on the other hand, while noticing only
lie
,...
a part of the said tests proceeded on the premise that those
F
symptoms spoken to by her in her evidence were not noted by
her in the post-mortem report. Apart from the fact that the
quotation from Modi does not take into consideration all the
symptoms noted therein, a wrong test was applied that all the
-+
features in a given case would not be available where the body
G
is burnt after killing, which is not the case herein. Despite
"4
noticing that some of the usual symptoms that would be
available in the case of death due to asphyxia by smothering
were necessary still a purported formal opinion was arrived at
'•
that the prosecution had definitely established the cause of
H
742
SUPREME COURT REPORTS
[2009] 9 S.C.R.
A death. A similar question came up for consideration in Mohd.
-'r
Zahid vs. State of T.N. [1999 SCC (Crl.) 1066], wherein the
Doctor differed with a well known tests of medical
jurisprudence. The suggestion of the defence with reference
thereto cannot be lightly brushed aside particularly when postB mortem was conducted after a few days. P·.W. 10 did not refer
to any other authoritative text to support her opinion. This Court
in the fact of that case opined:
-+
" ... A cautious reading of this part of PW-S's evidence
c
shows that in one part PW-8 admits that the one and only
method by which a medical examiner can conclude that
the cause of death was due to cerebral anoxia is by
noticing the pale appearance of the brain. She also
specifically admits that there will not be any other change
in the brain in the case of cerebral anoxia and since the
.D
brain had become liquefied, it cannot be stated if the brain
had become pale or not. She is also specific in her
,.+
statement that there was no other sign by which she could
say that was cerebral anoxia. Stopping for a while at this
stage and examining PW-B's evidence, one finds that at
E
the time of the post mortem examination, Jabeena's brain
had liquefied and there was no way by which PW-8 could
have noticed the paleness in the brain. However, in the
..
latter part of her evidence, she deviates from her earlier
)iopinion and states that it is not correct to say that no
~ ,.,,.
F
opinion of cerebral anoxia could be given or arrived at in
the case of liquefaction of the brain. These two statements
are diametrically opposed to each other and we find it
rather difficult to accept this part of her evidence which is
so self-contradictory. In our view, the opinion of PW-8 that
G
the cause of death as recorded by her is due to the
cumulative effect of asphyxia and cerebral anoxia, is rather
+
difficult to accept.
•
24. We are aware of the fact that sufficient weightage
H
should be given to the evidence of the doctor who has
~
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR.
743
[S.B. SINHA, J.]
+
conducted the post mortem, as compared to the
A
..
statements found in the text books, but giving weightage
does not ipso facto mean that each and every statement
made by a medical witness should be accepted on its
face· value even when it is self-contradictory. This is one
such case where we find that there is a reasonable doubt
8
in regard to the cause of death of Jabeena and we find it
not safe to rely upon the evidence of PW-8, solely, for the
--¥-
purpose of coming to the conclusion that Jabeena's death
is proved by the prosecution to be homicidal."
13. In State of Himachal Pradesh vs. Jeet Singh [(1999) c
4 SCC 370], this Court held:
.....
"19. It appears to us that the High Court has totally
overlooked the features of the victim which are consistent
with the consequence of her having been subjected to D
smothering. The injuries found on both the legs of the dead
body are proof positive tt;dt it was a homicidal smothering.
We can place reliance on the opinions of both sets of
doctors that even without seeing the chemical examiner's
report, they could say that death of the deceased might be
E
due to smothering, and after seeing the chemical
examiner's report, a doctor could say that poison would
-~
also have worked fatally in the victim."
,.,
14. So far as the circumstance that they had been living
together is concerned, indisputably, the entirety of the situation
F
should be taken into consideration. Ordinarily when the husband
and wife remained within the four walls of a house and a death
by homicide takes place it will be for the husband to explain
the circumstances in which she might have died. However, we
.......
cannot lose sight of the fact that although the same may be
G
/~
considered to be a strong circumstance but that by alone in
absence of any evidence of violence on the deceased cannot
be held to be conclusive. It may be difficult to arrive at a
conclusion that the husband and husband alone was
responsible therefor.
H
744
SUPREME COURT REPORTS
(2009] 9 S.C.R.
~
A
15. Mr. Kanagaraj has placed strong reliance upon the
'
decision of this Court in Trimukh Maroti Kirkan ·vs. State of
~
Maharashtra [(2006) 10 SCC 681] wherein it was held:
"18. The question of burden of proof where some facts are
s·
within the personal knowledge of the accused was
examined in State of West Bengal v. Mir Mohamma°'
Omar and Ors. [(2000) 8 SCC 382]. In this case the
assailants forcibly dragged the deceased, Mahesh from
+
the house where he was taking shelter on account of the
fear of the accused and took him away at about 2.30 in
C.
the night. Next day in the morning his mangled body was
found lying in the hospital. The trial Court convicted the
accused under Section 364 read with Section 34 IPC and
....
sentenced them to 10 years' RI. The accused preferred an
appeal against their conviction before the High Court and
D
the State also filed an appeal challenging the acquittal of
the accused for murder charge. The accused had not given
!I'-
any explanation as to what happened to Mahesh after he
was abducted by them. The learned Sessions Judge after
referring to the law on circumstantial evidence had
E
observed that there was a missing link in the chain of
evidence after the deceased was last seen together with
the accused persons and the discovery of the dead body
in the hospital and had concluded that the prosecution had
~-
failed to establish the charge of murder against the
.. -
F
accused persons beyond any reasonable doubt. This
Court took note of the provisions of Section 106 of the
Evidence Act and laid down the following principle in paras
31 to 34 of the reports:
G
31. The pristine rule that the burden of proof is on
the prosecution to prove the guilt of the accused
+
should not be taken as a fossilised doctrine as
-i
though it admits no process of intelligent reasoning.
The doctrine of presumption is not alien to the
above rule, nor would it impair the temper of the
H
-~
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR.
745
. [S.B. SINHA, J.]
-f
rule. On the other hand, if the traditional rule relating
A
to burden of proof of the prosecution is allowed to
be wrapped in pedantic coverage, the offenders in
serious offences would be the major beneficiaries
and the society would be the casualty.
B
32. In this case, when the prosecution succeeded
in establishing the afore-narrated circumstances,
the court has to presume the existence of certain
facts. Presumption is a course recognised by the
law for the court to rely on in conditions such as this. c
33. Presumption of fact is an inference as to the
~-·
existence of one fact from the existence of some
other facts, unless the truth of such inference is
disproved. Presumption of fact is a rule in law of
evidence that a fact otherwise doubtful may be
D
+-:
inferred from certain other proved facts. When
inferring the existence of a fact from other set of
proved fac~s, the court exercises a process of
reasoning and reaches a logical conclusion as the
most probable position. The above principle has
E
gained legislative recognition in India when Section
114 is incorporated in the Evidence Act. It
-1
·empowers the court to presume the existence of any
, ...
,..
fact which it thinks likely to have happened. In that
process the court shall have regard to the common
F
course of natural events, human conduct etc. in
relation to the facts of the case.
34. When it is proved to the satisfaction of the court
that Mahesh was abducted by the accused and they G
..
.-+
took him out of that area, the accused alone knew
--·
what happened to him until he was with them. If he
was found murdered within a short time after the
abduction the permitted reasoning process would
--4'
enable the court to draw the presumption that the
accused have murdered him. Such inference can
H
746
SUPREME COURT REPORTS
[2009] 9 S.C.R.
~A.
A
be disrupted if the accused would tell the court what
~
else happened to Mahesh at least until he was in
their custody.' "
/ I
16. Yet again in Ponnusamy vs. State\ of Tamil Nadu
B [(2008) 5 SCC 587], this Court he1d:
"21. We have to consider the factual background of the
present case in the light of the relationship between the
+
parties. If his wife was found missing, ordinarily, the
husband would search for he. If she has died in an
c
unnatural situation when she was in his company, he is
expected to offer an explanation therefor. Lack of such
.___
explanation on the part of the appellant itself would be a
circumstantial evidence against him.
IV'
D
27. We must also take into consideration the fact that the
dead-body was decomposed with maggots all over it.
Other marks of strangulation which could have been found
-!t
were not to be found in this case. The dead body was found
after a few days. We are, therefore, of the opinion that
E
medical evidence does not negate the prosecution case."
17. In both the aforementioned cases, the death occurred
due to violence. In this case, there was no mark of violence.
Appellant has been found to be wholly innocent. So far as the
)-
charges under Section 498A or Section 4 of the Dowry
..
F Prohibition Act is concerned, the evidence of the parents of the
deceased being P.W. 1 and P.W. 2 as also the mediators
P.Ws.4 and 5 have been disbelieved by both the courts below.
That part of the prosecution story suggesting strong motive on
the part of the appellant to commit the murder, thus, has been
G ruled out.
-+-
~•-
18. However, we may notice that in Mohd. Zahid (supra),
this Court opined:
"Of course, the prosecution has established that the
H
SUBRAMANIAM v. STATE OF TAMIL NADU & ANR.
747
[S.B. SINHA, J.]
appellant was the only person in the company of Jabeena
A
and her child at the relevant time on the fateful day.