Mohanan vs State Of Kerala
2023 Latest Caselaw 8392 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                              &
          THE HONOURABLE MRS. JUSTICE C.S. SUDHA
 MONDAY, THE 7TH DAY OF AUGUST 2023 / 16TH SRAVANA, 1945
                     CRL.A NO. 51 OF 2017
AGAINST THE JUDGMENT IN CP 53/2011 OF JUDICIAL MAGISTRATE
    OF FIRST CLASS, (MUNSIFF MAGISTRATE COURT) ADIMALI
     SC 496/2011 OF II ADDITIONAL DISTRICT & SESSIONS
                       COURT,THODUPUZHA
APPELLANT/ACCUSED:

         MOHANAN
         AGED 38 YEARS, S/O.GURUSWAMI, THATTEKANNANKUDI
         SETTLEMENT, MACHIPLAVU KARA, MANNAMKANDAM
         VILLAGE, THODUPUZHA, PINCODE-685561.
         BY ADV SRI.P.B.AJOY

RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY SHO, ADIMALY POLICE STATION,
         THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF
         KERALA, ERNAKULAM.
         BY ADV.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR


 THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON 27.07.2023,
THE COURT ON 07.08.2023 DELIVERED THE FOLLOWING:
 Crl. Appeal No.51 of 2017              2



                                                                 C.R.


              P.B.SURESH KUMAR & C.S.SUDHA, JJ.
               -----------------------------------------------
                     Crl.Appeal No.51 of 2017
               -----------------------------------------------
            Dated this the 7th day of August, 2023.


                            JUDGMENT

P.B.Suresh Kumar, J.

This is an appeal under Section 374 (2) of the Code

of Criminal Procedure (the Code). The appellant is the sole

accused in S.C. No.496 of 2011 on the files of the Additional

Sessions Court - II, Thodupuzha. He stands convicted and

sentenced for the offences punishable under Sections 302 and

201 of the Indian Penal Code (IPC).

2. The wife of the accused Radha was found dead

in their house on 28.02.2009. The accused has three children in

his wedlock with the deceased. The first person to arrive at the

house of the deceased on coming to know of the death is the

mother of the deceased, Koluthai. On receiving information

from Koluthai, the brother of the deceased, Rajan informed the

death to the police on the following day and a crime was

accordingly registered at about 9 a.m. on that day. Rajan had

no clues as to the cause of death at the time of furnishing the

information to the police. Consequently, the case was

registered only under Section 174 of the Code. Later, the case

was converted as one under Sections 306, 498A and 201 IPC.

The investigation conducted thereupon revealed that it is a

case of uxoricide and consequently final report has been filed

against the accused under Sections 302, 498A and 201 IPC.

3. The essence of the accusation is that the

accused used to quarrel with the deceased and torture her

physically as also mentally doubting her chastity, and that at

about 11 p.m. on 28.02.2009, the accused struck on the head

of the deceased with the handle of a spade and thereafter

hanged her, after tying a knot around her neck with a saree in

the iron hook on the roof of their house. It is also the accusation

that the accused thereafter cut the saree used for hanging the

deceased into a few pieces, concealed the same so as to

destroy evidence and caused the body to lie on the floor on a

mat.

4. On the accused pleading not guilty of the

charges framed against him by the Court of Session on

committal of the case for trial, the prosecution examined 13

witnesses as PWs 1 to 13 and proved through them 24

documents as Exts.P1 to P24. MOs 1 to 16 are the material

objects in the case. Ext.D1 is the portion of the statement given

by the witness who gave evidence as PW13.

5. After the prosecution tendered its evidence,

when the accused was questioned under Section 313 of the

Code, he denied the incriminating circumstances brought out in

evidence against him and maintained that he is innocent. In

addition, he also stated that his wife committed suicide.

6. The Court of Session, on an appraisal of the

materials on record, found the accused guilty of the offences

punishable under Sections 302 and 201 IPC and sentenced him

to undergo imprisonment for life and to pay a fine of Rs.

25,000/- for the offence punishable under Section 302 I.P.C. and

to undergo rigorous imprisonment for three years and to pay a

fine of Rs. 10,000/- for the offence punishable under Section

201 I.P.C. Default sentences were also imposed on the accused.

The accused is aggrieved by the said decision of the Court of

Session and hence this appeal.

7. Heard the learned counsel for the accused as

also the learned Special Public Prosecutor.

8. The essence of the submissions made by the

learned counsel for the accused was that it is a case of suicide

and not homicide. We are not referring to the submissions

made by the learned counsel for the accused here as we

propose to deal with the same elaborately in the latter part of

this judgment. Per contra, the learned Special Public Prosecutor

asserted, placing reliance on the materials on record, that it is a

case of homicide and not a suicide at all.

9. In the light of the submissions made by the

learned counsel for the parties, the questions that arise for

consideration are (1) whether it is a case of homicide and (2) if

so, whether the conviction and sentence imposed on the

accused are sustainable in law.

10. Questions 1 and 2: PW6 is the doctor who

conducted post-mortem examination of the body of the

deceased. Ext.P5 is the post-mortem certificate issued by PW6.

It was deposed by PW6 that the post-mortem findings are

consistent with death due to constriction force around the neck.

In the light of the said evidence, the cause of death can either

be homicide or suicide. In cross-examination, PW6 deposed that

he cannot say definitely as to whether the constriction force

applied is homicidal or suicidal. The attempt of the counsel for

the accused while cross-examining PW6 was to establish that

homicidal hanging was not possible without involving more than

one person. To a direct question on this point, the answer given

by PW6 was that he cannot definitely say so. It can thus be

seen that the evidence of PW6 is not sufficient to come to a

definite conclusion as to whether the death is homicidal or

suicidal.

11. The oral evidence in the case consists of PW1,

the brother of the deceased who gave the First Information

Statement, PW3, the mother of the deceased and PW4, the

elder son of the deceased, Unni, who was aged 9 years at the

time of occurrence. As already noticed, PW1 is not an

eyewitness to the occurrence. He came to the scene only on the

following morning after receiving information as to the death of

the victim from PW3. He deposed that the accused used to

quarrel with the deceased and assault her and due to this

reason, on several occasions, the deceased and her children

returned to their house. PW3 is also not an eyewitness to the

occurrence. PW3 is residing half a kilometer away from the

place of occurrence. PW3 deposed that by about 11 p.m. on

the date of occurrence, one Mani informed her that the

deceased was lying unconscious in her house and when she

reached the house of the deceased, she found the body of the

deceased lying on a mat on the floor. PW3 deposed that on

examination, she found that her daughter is no more. PW3

deposed that she thereupon took the children of the deceased

and went back to her house along with her husband. PW3

deposed that while going back home, she was carrying the

second child and her husband was carrying the youngest child.

It was deposed by her that PW4 was walking along with her.

PW3 also deposed that the accused used to quarrel with the

deceased doubting her chastity and assault her, after

consuming liquor. PW3 deposed that there is a wooden bridge

over a stream in between the houses; that when they reached

the said wooden bridge, PW4 told her that his mother was

struck with a spade and hanged live and that she was brought

down thereafter using a chopper. She explained in her evidence

that since she was upset, she did not disclose anything to the

police initially and it is only later that she informed the Police

about the information passed on to her by PW4. While cross-

examining PW3, even though a suggestion was put to her by

the counsel for the accused that PW4 has not informed

anything to her about the cause of the death of the deceased,

she denied the same.

12. PW4 deposed that the accused came home on

the date of occurrence after consuming liquor and began

quarrelling with the deceased; that the accused struck on the

front side of the head of the deceased using the handle of a

spade while the deceased was standing in the veranda of the

house; that when the deceased fell down on account of the

impact of the hit, the accused hanged her after tying a knot

around her neck with a saree in the iron hook on the roof of the

house and that after sometime, the accused cut the saree and

caused the body to lie on the floor. PW4 deposed that he gave a

statement before the Magistrate earlier in connection with the

occurrence. In cross-examination, in the answer to a question

put to him, PW4 deposed that when his father struck his mother

using the handle of a spade, she did not cry while falling down,

although she was conscious. In reply to the question put to PW4

in cross-examination as to how his father carried his mother to

the inside room from the veranda of the house, PW4

demonstrated to the court as to how his father carried his

mother by using gestures. Similarly, in answer to the question

put to PW4 in cross-examination as to how his father was able

to hang his mother by carrying her, PW4 explained that his

father first made his mother to lay down on the floor and then

he brought the saree and thereafter hanged her. Again, in reply

to the specific question in cross-examination as to whether his

mother stated anything while his father carried her to the inside

room, PW4 answered that she was saying something and he

could not understand the same. Similarly, in cross-examination,

PW4 clarified that after tying a knot on the neck of his mother

with a saree, his father pulled the saree to lift the body of his

mother and that after lifting her about 2 feet from the ground,

he tied the knot and after sometime, he chopped the saree and

brought the body down by supporting the body and made the

body lie down on the floor.

13. PW7 is the Scientific Assistant who examined

the scene of occurrence and obtained the cellophane tape

pressings from the iron hook on the ceiling of the house. PW11

is the Joint Director of the Forensic Science Laboratory,

Thiruvananthapuram, who issued Ext.P11 report after

comparing the fibres contained in the said cellophane tape

pressings and the fibres contained in the cellophane tape

pressing obtained from the body of the deceased. Item No.1

referred to in Ext.P11 report is the cellophane tape pressings

taken from the right palm of the deceased, item No.2 referred

to therein is the cellophane tape pressings taken from the left

palm of the deceased, item No.3 referred to therein is the

cellophane tape pressings taken from the front portion of the

neck of the deceased and item No.4 referred to therein is the

cellophane tape pressings taken from the back portion of the

neck of the deceased. Item No.5 referred to in Ext.P11 report is

the cellophane tape pressings taken from the iron hook of the

roof of the house and item No.6 referred to therein are the cut

pieces of the saree discovered and seized based on the

disclosure statement given by the accused while in police

custody. PW11 deposed that the cellophane tape pressings

referred to in item Nos.1 to 5, contained fibres similar to those

in item No.6.

14. PW12 is the Sub Inspector of Police who

investigated the case initially. He deposed that when the

accused was interrogated, he informed him that he concealed

the saree in a place in his house and that he can get it if he is

taken there. He deposed that the accused was accordingly

taken to the place led by him and he took MO2 series pieces of

saree from beneath the wooden plank on which a stone grinder

was kept in the house. Ext.P5 is the mahazar prepared in

connection with the seizure of the saree pieces and Ext.P5(a) is

the disclosure statement. PW13 is the police officer who

conducted the investigation subsequently. He deposed that

when the accused was interrogated, he informed him that he

concealed a chopper in a place in his house and that he can get

it, if he is taken there. PW13 deposed that the accused was

accordingly taken to his house and he took out MO6 chopper

from his house and handed over the same to the investigating

officer. Ext.P9 is the mahazar prepared in connection with the

seizure of MO6 chopper and Ext.P9(a) is the disclosure

statement.

15. As noticed, the only eye witness to the

occurrence is PW4. PW1 was examined by the prosecution only

to prove the motive of the accused to cause the death of the

victim. Whereas, PW3 was examined by the prosecution not

only to prove the motive but also the fact that PW4 stated to

her on the date of occurrence itself that the death of the victim

was caused by the accused, which if falls under Section 6 of the

Indian Evidence Act, would be admissible in evidence as a

relevant fact. Apart from the evidence of PWs 1, 3 and 4, there

is only the evidence of PW11 and the evidence of PWs 12 and

13, the investigating officers.

16. One of the arguments seriously pressed into

service by the learned counsel for the accused is that the

evidence of PW4 is not believable at all. As far as the evidence

let in by PW3 is concerned, the argument advanced by the

learned counsel is that the evidence let in by her that PW4

informed her on the day of occurrence that it is the accused

who caused the death of the victim, is not admissible as res

gestae in terms of Section 6 of the Indian Evidence Act.

17. Let us first consider the argument as regards

the acceptability of the evidence of PW4. As already indicated,

PW4 was only 9 years of age at the time of occurrence. Voir dire

was conducted, as PW4 was aged only 13 years at the time of

trial. It is having found that PW4 is able to understand and

comprehend the questions put to him and give rational answers

to those questions, that he was permitted to give evidence in

the case. Having gone through the evidence tendered by PW4,

we agree with the finding rendered by the Court of Session that

PW4 was able to understand the questions put to him and give

rational answers. Even though PW4 got emotional on a few

occasions while referring to his mother and started weeping, we

find that the answers given by PW4 to various questions put to

him, especially during cross-examination, were not only

rational, but also appeared to be natural and real. In the chief-

examination, PW4 deposed only the skeleton facts required for

the prosecution, giving ample scope to the defence to cross-

examine him. It is seen that the answers given by PW4 in cross-

examination not only filled up the gaps in the evidence

tendered by him in chief-examination, but also reinforced the

same. Having examined carefully the evidence of PW4, we do

not find any reason to disbelieve his evidence. As noted, the

occurrence took place on the night of 28.02.2009 and the

occurrence was informed to the police on 01.03.2009 itself.

Even though the police registered a crime pursuant to the

information and came to the scene thereafter, the statement of

PW4 was taken only on 07.03.2009. This delay was highlighted

as a fatal delay affecting the genuineness of the prosecution

case by the learned counsel for the accused, for there was

enough time in between for interested persons to tutor PW4.

According to the learned counsel, on that sole ground, the

evidence of PW4 is liable to be rejected. We are unable to

accept the broad submission made by the learned counsel for

the accused that whenever there is delay in recording the

statement of crucial witnesses, their evidence is liable to be

rejected. The question as to whether the delay on the part of

the police in recording the statement of a crucial witness is fatal

is one to be decided having regard to the totality of the facts

and circumstances of each case. As far as the present case is

concerned, the parties being tribals, merely for the reason that

the Sub Inspector of Police who conducted the investigation did

not question the child or merely because the relatives of the

deceased did not cause the child to give a statement to the

police, it cannot be said that the evidence given by the child is

liable to be rejected, if the same is otherwise acceptable.

18. The learned counsel for the accused

highlighted trivial discrepancies in the evidence tendered by

PW4 as to the time of occurrence, the background light on the

basis of which PW4 witnessed the occurrence and also the

improbability in the evidence of PW4 that the deceased did not

cry on receiving the strike with the handle of the spade on her

head, to contend that the witness cannot be believed,

especially when PW4 was being taken care of by his

grandmother, who maintained hostility towards the accused

after the occurrence. According to us, the aforesaid

discrepancies are trivial in nature and not sufficient to entertain

any doubt as to the genuineness of the evidence. True, a

suspicion would arise as to why the deceased did not cry on

receiving a severe strike on her head. But, it is seen that on

being struck, she fell down. Even though PW4 stated that the

deceased was conscious at the relevant time, from the

evidence tendered by PW4 itself, it could be seen that she was

in an unconscious state, for PW4 could not understand what she

was uttering while she was being carried by the accused to the

room. In other words, we do not find any improbability in the

evidence of PW4 to disbelieve the same in toto.

19. As far as the evidence tendered by PW3 is

concerned, as noted, the objection of the learned counsel for

the accused is only on the point as to whether PW4 made any

statement to her as regards the cause of death of the

deceased. It is seen that the said part of the evidence has been

accepted by the Court of Session as res gestae in terms of

Section 6 of the Indian Evidence Act to corroborate the

evidence tendered by PW4. It is beyond doubt that if the said

part of the evidence of PW3 would not fall under Section 6 of

the Indian Evidence Act, the evidence of PW3 could be availed

of by the prosecution only to prove the motive. In the

circumstances, we propose to consider the question whether

the said part of the evidence would fall within the scope of

Section 6 of the Indian Evidence Act rather than considering the

acceptability of the evidence tendered by PW3 in respect of the

same, for if it is not admissible under Section 6 of the Indian

Evidence Act, that part of the evidence would only be hearsay.

20. Section 6 of the Indian Evidence Act provides

that facts which, though not in issue, are so connected with a

fact in issue as to form part of the same transaction, are

relevant, whether they occurred at the same time and place or

at different times and places. Section 6 recognizes the principle

of res gestae which enables the court to admit facts which are

otherwise not admissible. Section 6 reads thus:

"6. Relevancy of facts forming part of same transaction.--Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by- standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked, and goals are broken open. The occurrence of these facts is relevant, as forming part of the general

transaction, though A may not have been present at all of them.

(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

(d) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact."

The facts admissible under Section 6 as relevant are facts which

are so connected with the fact in issue, if not the fact in issue,

so as to form part of the same transaction, whether they occur

at the same time and place or at different times and places. The

rationale in making such facts admissible in evidence is on

account of the spontaneity and immediacy of such facts in

relation to the fact in issue. In other words, it is necessary that

such facts must be part of the same transaction and if it is in

relation to a statement, the same must have been made

contemporaneous with the transaction or at least immediately

thereafter. The illustrations to Section 6 demonstrates the

different contexts of the application of the provision. It is trite

that an illustration to a statutory provision is a useful aid in the

interpretation of the provision, though the same does not

exhaust the full content of the Section which it illustrates nor

does it curtail or expand the ambit of the Section [See

Shambhu Nath Mehra v. State of Ajmer, AIR 1956 SC 404].

If the provision is understood keeping in mind illustration (a), it

could be seen that whatever is said and done by PW4 at the

time of occurrence or so shortly after the occurrence as to form

part of the occurrence, is admissible. In other words, the

statement of PW4 would be admissible only had the statement

been made contemporaneous to the occurrence and interwoven

with the fact in issue. If the transaction is terminated and

thereafter a statement is made narrating the transaction, the

same would not fall under Section 6 of the Indian Evidence Act

[See Bhaskaran v. State of Kerala, 1985 KLT 122]. As

noticed, the occurrence took place in the night of 28.02.2009.

The evidence indicates that by about 11 p.m., the matter was

informed by one Mani to PW3. PW3 who was residing about half

a kilometer away from the place of occurrence came to the

scene by walk along with her husband, remained at the scene

for sometime, went to the neighbouring house and waited there

for sometime and thereafter proceeded back to her residence

with the children of the deceased including PW4. It was while

so, PW4 stated to have made some utterances. The said part of

the evidence of PW3 reads thus:

"അതിലെ തടിപ്പാലത്തിൽ എത്തിയപ്പോൾ ഉണ്ണി അമ്മയെ തൂമ്പാ കൊണ്ട് അടിച്ചു, തളർത്തിയിട്ട് മരിക്കാതെ കെട്ടിതൂക്കിയെന്നു പറഞ്ഞു എന്നിട്ട് വാക്കത്തിക്ക് വെട്ടി താഴെയിറക്കി എന്ന് പറഞ്ഞു. "

According to us, the said evidence is only a narration of the

occurrence, made several hours after the culmination of the

occurrence and therefore the same is not admissible in

evidence under Section 6 of the Act.

21. As regards the evidence let in by PW12 in

connection with the discovery and consequent seizure of MO2

series pieces of saree, the argument advanced by the learned

counsel for the accused is only that the confessional statement

associated with the discovery has not been marked and

instead, only the admissible portion of the confession was

recorded in the mahazar. According to the learned counsel, the

confession made by the accused during interrogation should

have been recorded separately by the investigating officer,

instead of showing only the admissible part of the confession in

the mahazar. There is no substance in this argument. Section

27 of the Indian Evidence Act only provides that when any fact

is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody

of a police officer, so much of such information, whether it

amounts to a confession or not, as it relates distinctly by the

fact discovered, may be proved. In other words, if the evidence

tendered by the investigating officer as to any fact discovered

in consequence of information received from a person accused

of any offence is found acceptable to a court, then, so much of

the information stated to have been received from the accused

by the investigating officer as it relates distinctly by the fact

discovered is admissible in evidence. There is no requirement

under law that the confession made by the accused which led

to the discovery shall be recorded [See Suresh Chandra

Bahri v. State of Bihar, AIR 1994 SC 2420]. That apart, the

tendency of the prosecution agency in getting the entire

statement of the accused recorded rather than only that part of

the statement which leads to the discovery is one deprecated

by the Apex Court [See Venkatesh v. State of Karnataka,

2022 SCC OnLine SC 765].

22. Coming to the evidence tendered by PW13 in

connection with the discovery and consequent seizure of MO6

chopper, the argument advanced by the learned counsel for the

accused is that the information relied on is one stated to have

been given by the accused to PW13 while in judicial custody.

The learned counsel relied on Ext.P9 mahazar in support of the

said argument. Ext.P9 mahazar indicates that the information

which led to the discovery and consequent seizure of MO6

chopper was given by the accused to PW13 while the accused

was in jail. There is no dispute to the fact that the investigating

officer has interrogated the accused in jail with the permission

of the jurisdictional Magistrate. On a query from the Court, the

learned counsel for the accused conceded that the discovery

and consequent seizure based on the information furnished by

the accused has been effected within fifteen days from the date

of his arrest. It is trite that the custody of an accused for the

initial period of fifteen days can either be judicial custody or

police custody and during this period, the competent

Magistrate is empowered to convert judicial custody to police

custody and vice versa [See CBI v. Anupam J. Kulkarni,

(1992) 3 SCC 141 and State of Kerala v. Sadanandan, 1984

KLT 747]. If that be so, according to us, while interrogating an

accused who is in jail with the permission of the competent

Magistrate, the accused is presumed to be in police custody

and the discovery and seizure of the weapon would therefore

fall under Section 27. We are fortified in this view as it is settled

by now that even if the accused is within the ken of surveillance

of the police during which his movements are restricted, he is

deemed to be in custody [See State of A.P. v. Gangula

Satya Murthy, AIR 1997 SC 1588]. It is all the more so since

the Code does not contemplate any formality before a person

can be said to be taken into custody [See State of U.P. v.

Deoman Upadhyaya, AIR 1960 SC 1125].

23. In the light of the discussion aforesaid, it could

be seen that what is left is the oral testimonies of PWs 1, 3 and

4 and the discovery of MO2 series saree pieces and MO6

chopper. As already noticed, the evidence tendered by PWs 1

and 3 would only indicate that the accused used to pick up

quarrels and used to assault the deceased doubting her

chastity. We have already found that there is absolutely no

reason to disbelieve the evidence tendered by PW4 as to the

occurrence. The evidence tendered by PW11 would corroborate

the evidence tendered by PW4 that the accused hanged the

deceased live using the saree, the pieces of which are marked

in the proceedings as MO2 series. The subsequent conduct of

the accused in concealing MO2 series beneath the wooden

plank over which a stone grinder was placed in the house is

also an incriminating material which would strengthen the

evidence tendered by PW4. The aforesaid evidence establishes

beyond reasonable doubt that the death of the victim was

caused by hanging, and therefore, the case is one of homicide

and not suicide and that it is the accused who caused the death

of the deceased.

24. The learned counsel for the accused

vehemently argued that the prosecution gave up almost 15

witnesses including persons who are residing in the

neighbourhood of the place of the occurrence. According to the

learned counsel, the said conduct on the part of the prosecution

creates a doubt that the prosecution intends to suppress

relevant facts. No doubt, in a case of this nature, it would have

been prudent on the part of the prosecution to examine some

among the persons who are residing in the neighbourhood of

the scene of occurrence as well, in order to enable the court to

come to a conclusion on the factual issues without any

semblance of doubt. But, on the facts of this case, we do not

find any reason to doubt the genuineness of the case put

forward by the prosecution for that reason.

25. Yet another argument advanced by the learned

counsel for the accused is based on the evidence tendered by

PW11. As already noticed, it was deposed by PW11 that the

fibres present on the palms of the deceased are the fibres

similar to the fibres in MO2 series saree pieces. According to

the learned counsel, it was obligatory on the part of the

prosecution to explain as to how the same fibres of MO2 series

pieces of saree appeared in the palms of the deceased. The

argument is that in the case of homicidal death by hanging, the

possibility of fibres in the hands of the victim, is remote. It was

conceded by the learned counsel that the only possibility is a

defensive catch on the saree by the victim at the time of

hanging. According to the learned counsel, the said possibility

is remote in this case as PW4 has no case that there was

struggle at the time of hanging. Contamination during cutting of

the saree is also not a possibility in this case, according to the

learned counsel, since there is no evidence to show as to how

and where the saree was cut by the accused. We do not find

any merit in this argument also. Merely for the reason that the

fibres of MO2 series saree pieces were found in the palms of the

deceased, it cannot be straight away held that this is a case of

suicide. Contamination, according to us, is the only possibility

on the facts of this case to justify the presence of fibres in the

palms of the deceased.

26. Placing reliance on Modi, a Textbook of Medical

Jurisprudence and Toxicology, the learned counsel for the

accused argued that one single person without the assistance

of another cannot cause homicidal death by hanging, unless the

victim is a child or very weak and feeble or is rendered

unconscious by some intoxicating or narcotic drug. It is a

general statement. According to us, there can be exceptions to

this general statement. Even otherwise, the victim in the case

on hand was proved to be weak and feeble, if not, unconscious

after the accused gave the initial strike on her head using the

handle of the spade. The argument is only to be rejected and

we do so.

In the result, we do not find any merit in this appeal

and the same is, accordingly, dismissed.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

C.S.SUDHA, JUDGE.

Mn