R.Damodaran vs The State Rep. By The Inspector Of … on 23 February, 2021


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Supreme Court of India

R.Damodaran vs The State Rep. By The Inspector Of … on 23 February, 2021

Author: Ajay Rastogi

Bench: Hon’Ble Ms. Malhotra, Ajay Rastogi

                                                          NON-REPORTABLE

                             IN THE SUPREME COURT OF INDIA

                           CRIMINAL APPELLATE JURISDICTION

                            CRIMINAL APPEAL NO.1008 OF 2010


          R. DAMODARAN                                    ...APPELLANT(S)


                                       VERSUS



          THE STATE REPRESENTED BY THE
          INSPECTOR OF POLICE                             ...RESPONDENT(S)



                                      JUDGMENT

Rastogi, J.

1. The accused appellant was charged for offence under

Section 302 IPC for the murder of his own wife Nirmala Mary while

she was at the advanced stage of her pregnancy. After facing trial,

he was held guilty of charge of murder of his wife under Section 302

IPC and was awarded life imprisonment by the learned trial Judge
Signature Not Verified

by judgment dated 3rd September, 2007 and confirmed by the High
Digitally signed by
Nidhi Ahuja
Date: 2021.02.23
17:18:59 IST
Reason:

Court by judgment impugned dated 10th July, 2009.

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2. The case of the prosecution is that marriage of deceased

Nirmala Mary and accused appellant was solemnised on

17th February, 1997. The appellant used to frequently change his

rented accommodation and whenever he changed the rented

accommodation, he used to quarrel with the deceased and send her

to her father to fetch money. Her father extended monetary help to

the extent it was possible.

3. Since the date they shifted to Walles Garden area, the

accused appellant used to come home after consuming liquor and

invariably had a quarrel with the deceased and beat her. Deceased

lodged complaint at the Police Station many a times in this regard

and in continuation of the occurrence on the fateful night of 28th

October, 2005, while he was quarrelling with deceased Nirmala

Mary, he picked up a log from the house and beaten deceased

Nirmala Mary and caused internal injury in her stomach and

murdered her.

4. On the date of the incident, that is 29th October, 2005,

Mrs. Glory(PW 2-aunt of the deceased) found her standing in the

street. When she called the deceased (Nirmala Mary) and asked her

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what had happened, she replied that her husband had beaten her

up with a wooden log. Since there was a regular quarrel taking

place between husband and wife, Mrs. Glory(PW 2) told the

deceased that after she come back, she would take the deceased to

the hospital for treatment. After returning from work at home, she

was informed that the deceased had been taken to the hospital in a

serious condition. At about 4.30 p.m. on the same date, i.e. 29th

October, 2005, the accused appellant brought his wife to the

Kilpauk Medical College and Hospital, Chennai and complained

that she had got cardiac arrest. The Doctor medically examined

and found her dead. On receipt of the death intimation, PW 8, the

Sub Inspector of Police, attached to the Police Station proceeded to

the hospital and prepared the inquest report and FIR, in the first

instance, was registered under Section 174 Cr.PC for suspicious

death.

5. After the autopsy on the dead body was conducted by PW 7,

the Professor of Forensic Medicine, Senior Civil Surgeon,

Government Kilpauk Medical College, Chennai, it was opined that

the deceased died of shock and haemorrhage due to thoracic

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injuries and on the opinion expressed in the post-mortem report,

the case under Section 302 IPC was registered.

6. Pending investigation, the appellant was arrested. In

order to substantiate the charge, the prosecution marched 11

witnesses and also relied on 17 exhibits and 4 material objects. On

completion of the evidence on the side of the prosecution, the

accused was questioned under Section 313 CrPC to the

incriminating circumstances found in the evidence of the

prosecution witnesses, which he flatly denied as false and no

defence witness was examined.

7. It is not in controversy that the incident took place on

29th October, 2005 during day hours and the dead body of the

deceased was taken by the accused appellant to the hospital where

she was declared dead by the Doctor (PW 6). The case of the

prosecution was that the appellant attacked with a wooden log and

caused her death because of homicidal violence. The defence plea

was that it was a cardiac arrest. Even from the evidence of the

Doctor PW 6, it would be clear that when the accused appellant

brought the deceased to the hospital, she was dead but still

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informed the Doctor that she had a cardiac arrest. In the medical

opinion canvassed through PW 7 Doctor, it was opined that she

died out of shock and haemorrhage due to thoracic injuries because

of homicidal violence.

8. It is true that the prosecution had no direct evidence to

offer. It rested its case upon circumstances which would indicate

that in the past, he was ill-treating her and there were complaints

given to the police, and they were enquired by PWs 9 and 10, the

police officials, attached to Thousand Light Police Station. On the

fateful day, the accused appellant alone was present with his family

and they living together.

9. House of Mrs. Glory, the aunt of the deceased is situated

just opposite to their house and she had recorded her evidence as

PW 2 that on 29th October, 2005, when she was about to start for

work in the morning hours, she found the deceased standing in the

street and when she called her, the deceased informed that her

husband had beaten her. It is further corroborated from the post-

mortem report of the deceased who was at the advanced stage of

pregnancy at that time.

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10. It was the appellant himself who took her to the hospital

and made a false statement that she suffered a cardiac arrest but

after the autopsy was conducted on the body of the deceased, it was

opined that she died out of shock and haemorrhage due to thoracic

injuries. In addition to other circumstances, the prosecution was

able to establish that it was none other than the appellant who had

committed the crime and he wanted to show his innocence by

taking the deceased to the hospital and made a false statement that

she suffered a cardiac arrest which on receipt of the post-mortem

certificate, was found to be false where it was established that the

death was caused by homicidal violence.

11. The following injuries were found on the body of the

deceased:-

“(1)Bluish contusion seen over left mid-axillary line from 3-7
ribs level.

(2) Thick layer of reddish contusion seen in the sub cutanious
and inter costal region in the left mid-axillary line from 3-10
ribs.

(3) Fracture of 5-6 ribs from mid-axillary line on left side.

(4) Left thoracic cavity contains 1100 gms of clotted blood.
(5) Laceration of left lower iobe of lung(outer border) 3 X 2 X 2
cms
(6) Reddish left temporal contusion in the sub scalp region.

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All the above injuries are antemortem in nature.”

12. The statement of PW 7 Doctor and the medical evidence

brought on record establish that the injury nos. 1 to 6 were caused

with blunt weapon which resulted into death of the deceased.

Thus, the ocular evidence of Mrs. Glory(PW 2 – aunt of the

deceased) is corroborated with the medical evidence of Doctor(PW

7).

13. In a case based on circumstantial evidence, the settled

principles of law are that the circumstances from which the

conclusion of guilt is to be drawn should be fully proved and such

circumstances should be conclusive in nature and moreover the

circumstances should be complete and there should be no gap left

in the chain of events. However, the circumstances must be

consistent only with the hypothesis of the guilt of the accused and

inconsistent with the innocence. The principle which has to be kept

in mind in a case of circumstantial evidence has been laid down by

a three Judge Bench of this Court in the judgment reported in

Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4

SCC 116 which reads as under:-

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“153. A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:

(1) the circumstances from which the conclusion of guilt is to
be drawn should be fully established.

It may be noted here that this Court indicated that the
circumstances concerned “must or should” and not “may be”
established. There is not only a grammatical but a legal
distinction between “may be proved” and “must be or should be
proved” as was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra
[(1973) 2 SCC 793 where the
observations were made:

“Certainly, it is a primary principle that the
accused must be and not merely may be guilty before a
court can convict and the mental distance between ‘may
be’ and ‘must be’ is long and divides vague conjectures
from sure conclusions.”

(2) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that
the accused is guilty,

(3) the circumstances should be of a conclusive nature and
tendency,

(4) they should exclude every possible hypothesis except the
one to be proved, and

(5) there must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused.”

14. It was further followed by a three Judge Bench in Padala

Veera Reddy Vs. State of Andhra Pradesh and Ors. 1989 Supp

(2) SCC 706 wherein this Court held as under:-

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“10. Before adverting to the arguments advanced by the learned
Counsel, we shall at the threshold point out that in the present case
there is no direct evidence to connect the accused with the offence in
question and the prosecution rests its case solely on circumstantial
evidence. This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence such evidence
must satisfy the following tests:

“(1) the circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;

(3) the circumstances, taken cumulatively, should form a chain
so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the
accused and none else; and

(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.
(See Gambhir v. State of Maharashtra [(1982) 2 SCC 351]”

15. Taking note of the principles which has been laid down

by this Court and the circumstances which the prosecution has

established in a chain of events leave no matter of doubt that it is

none other than the appellant who had committed the crime of

murdering his own wife who was at the advanced stage of

pregnancy, and taken the dead body to the hospital and made a

false statement that she had got a cardiac arrest. Initially, the FIR

was registered on suspicion but after the autopsy on the body of the

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deceased was conducted, taking note of the post-mortem report, a

case under Section 302 IPC was registered. Such incriminating

links of facts could, if at all, have been explained by the appellant

and nobody else, they being personally and exclusively within his

knowledge. Of late, Courts have, from the falsity of the defence plea

and false answers given to Court, when questioned, found the

missing links to be supplied by such answers for completing the

chain of incriminating circumstances necessary to connect the

person concerned with the crime committed.

16. After we have gone through the record and findings

recorded by the learned trial Court and after being revisited by the

High Court under the impugned judgment which we have also

taken away for our satisfaction, the incriminating circumstances

pointed out, in our view, are sufficient with reasonable certainty on

the established facts, which connect the accused with the

commission of crime of committing the murder of his own wife

(Nirmala Mary).

17. Learned counsel for the appellant, in the first instance,

tried to persuade this Court that there are missing links in the

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circumstantial evidence on the basis of which the charge for offence

under Section 302 IPC has been established against him but when

this Court was not inclined to interfere with the finding and the

guilt which was recorded by the learned trial Court and affirmed by

the High Court under the impugned judgment, learned counsel for

the appellant submitted that the offence of the nature which has

been committed as alleged if is taken at the face value may not fall

under Section 302 IPC but may fall under Section 304 Part II IPC.

18. The present case squarely rests on circumstantial

evidence where the death has been caused by homicidal violence

and the appellant who had himself taken the deceased to the

hospital and made a false statement to the Doctor that she had

suffered a cardiac arrest which was found to be false after the post-

mortem report was received and the nature of injuries which were

attributed on the body of the deceased of which a reference has

been made clearly establish that it is the case where none other

than the accused appellant has committed a commission of crime

with intention to commit the murder of his own wife who was at the

advanced stage of pregnancy.

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19. We find no substance in the appeal and is accordingly

dismissed.

20. The appellant was released on bail by this Court by Order

dated 6th April, 2018, the bail bonds stand cancelled. The appellant

is directed to surrender within four weeks from today and undergo

the remaining part of sentence. If he fails to surrender, action may

be taken in accordance with law.

21. Pending application(s), if any, stand disposed of.

……………..…………………………J.

(ASHOK BHUSHAN)

……………………………………….J.

(AJAY RASTOGI)

NEW DELHI
FEBRUARY 23, 2021

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