# JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA

- **Citation:** [2019] 14 S.C.R. 30
- **Court:** Supreme Court of India
- **Decided:** 2019-11-06
- **Case number:** Criminal Appeal No. 1181 of 2011
- **Bench:** Sanjay Kishan Kaul, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/javed-abdul-rajjaq-shaikh-v-state-of-maharashtra-33313
- **Pages:** 28

## Headnote

Penal Code, 1860 - s.302 r/w. s.34 and s.498A - Murder -
Prosecution case was that the appellant and the other accused
committed murder of the wife of the appellant by throttling her -
They were charged u/s.302 r/w. s.34 - Besides, they were also
charged u/s.498A - Trial court convicted all the accused for offences
u/s.302 r/w. s.34 and s.498A - High Court acquitted all the accused
of all the offences except the appellant, he was convicted u/s.302 -
Father of the victim/deceased alleged that the accused were
maltreating victim and were demanding half tola gold, dress and
Rs.5000/- for business purposes - Appellant contended that when
the prosecution failed to establish the guilt of the other accused, in
the circumstances, it must be taken that prosecution also failed to
establish the case against the appellant u/s.302 simpliciter - It was
further contended that victim had committed suicide by hanging -
Held: PW-4 deposed that few days before the incident appellant
visited her and demanded half tola gold, money and further
threatened to kill his wife in case of non-compliance with his demands
- PW-3-father of the victim also spoke of the threat as conveyed by
PW-4 and the same was believed by the two Courts - Further, High
Court rightly concluded that appellant and his wife had a separate
room in the house and death had taken place around 3:30 a.m. in
the morning, therefore there was a custodial death in which the
appellant alone can be implicated - Both the Courts noted from the
spot panchnama that the height of the room in which victim had
died was just 5ft 10 inches and it was again rightly concluded by
them that the theory of hanging was incompatible by a person of
normal height or even if the height is 5ft - Further, a provisional
death certificate was issued by two doctors stating probable cause
of death was acute cardio respiratory arrest secondary to acute
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asphyxia, secondary to throttling and provisional death certificate
corroborated the postmortem report - Therefore, evidence on record
clearly supported the case of throttling - No merit in the appeal -
Appellant directed to serve the remaining sentence.
Medical Jurisprudence - Hanging, strangulation and
throttling - discussed.
Dismissing the appeal, the Court
HELD : 1. The evidence in this case clearly supports the
case of throttling. As far as the motive is concerned, there is the
evidence of P.W.4 that a few days prior to the date of incident
appellant had visited her and told her about not being given the
half tola gold and money. She also deposed about being told by
the appellant that result of non-compliance with his demands would
be that he would kill his wife. P.W.3 has also spoken of the threat
as conveyed by P.W.4. This has been believed in by two courts.
[Para 38] [55-D]
2. Another circumstance which is found by the High Court
is that, as is natural, the appellant and his wife had a separate
room, therefore, there was a custodial death in which the appellant
alone has been implicated. The death is found to have taken
place somewhere around 3.30 in the morning. The finding by the
High Court is that by that time the appellant would be with his
wife. This cannot be described as manifestly erroneous.
[Para 39] [55-E-F]
3. The post-mortem note indicates time of receipt of the
body as 3.15 p.m. on 10.3.2005. The post mortem is stated to
have begun at 3.30 p.m. on 10.3.2005 and ended at 4.45 p.m. on
10.3.2005. It is stated to be done by P.W.1 medical officer and by
the other doctor. The date is shown as 25.8.2005 on the post
mortem note. This apparently, is in tune with the deposition of
P.W.1 that other doctor was not available. At the same time, this
Court notice that on said date 10.3.2005, there is a provisional
death certificate which has been issued, according to P.W.1 him,
to the police immediately. It is in the handwriting of the second
doctor. He deposes that they have both signed on it and the
JA

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SUPREME COURT REPORTS
[2019] 14 S.C.R.
JAVED ABDUL RAJJAQ SHAIKH
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1181 of 2011)
NOVEMBER 06, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Penal Code, 1860 - s.302 r/w. s.34 and s.498A - Murder -
Prosecution case was that the appellant and the other accused
committed murder of the wife of the appellant by throttling her -
They were charged u/s.302 r/w. s.34 - Besides, they were also
charged u/s.498A - Trial court convicted all the accused for offences
u/s.302 r/w. s.34 and s.498A - High Court acquitted all the accused
of all the offences except the appellant, he was convicted u/s.302 -
Father of the victim/deceased alleged that the accused were
maltreating victim and were demanding half tola gold, dress and
Rs.5000/- for business purposes - Appellant contended that when
the prosecution failed to establish the guilt of the other accused, in
the circumstances, it must be taken that prosecution also failed to
establish the case against the appellant u/s.302 simpliciter - It was
further contended that victim had committed suicide by hanging -
Held: PW-4 deposed that few days before the incident appellant
visited her and demanded half tola gold, money and further
threatened to kill his wife in case of non-compliance with his demands
- PW-3-father of the victim also spoke of the threat as conveyed by
PW-4 and the same was believed by the two Courts - Further, High
Court rightly concluded that appellant and his wife had a separate
room in the house and death had taken place around 3:30 a.m. in
the morning, therefore there was a custodial death in which the
appellant alone can be implicated - Both the Courts noted from the
spot panchnama that the height of the room in which victim had
died was just 5ft 10 inches and it was again rightly concluded by
them that the theory of hanging was incompatible by a person of
normal height or even if the height is 5ft - Further, a provisional
death certificate was issued by two doctors stating probable cause
of death was acute cardio respiratory arrest secondary to acute
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asphyxia, secondary to throttling and provisional death certificate
corroborated the postmortem report - Therefore, evidence on record
clearly supported the case of throttling - No merit in the appeal -
Appellant directed to serve the remaining sentence.
Medical Jurisprudence - Hanging, strangulation and
throttling - discussed.
Dismissing the appeal, the Court
HELD : 1. The evidence in this case clearly supports the
case of throttling. As far as the motive is concerned, there is the
evidence of P.W.4 that a few days prior to the date of incident
appellant had visited her and told her about not being given the
half tola gold and money. She also deposed about being told by
the appellant that result of non-compliance with his demands would
be that he would kill his wife. P.W.3 has also spoken of the threat
as conveyed by P.W.4. This has been believed in by two courts.
[Para 38] [55-D]
2. Another circumstance which is found by the High Court
is that, as is natural, the appellant and his wife had a separate
room, therefore, there was a custodial death in which the appellant
alone has been implicated. The death is found to have taken
place somewhere around 3.30 in the morning. The finding by the
High Court is that by that time the appellant would be with his
wife. This cannot be described as manifestly erroneous.
[Para 39] [55-E-F]
3. The post-mortem note indicates time of receipt of the
body as 3.15 p.m. on 10.3.2005. The post mortem is stated to
have begun at 3.30 p.m. on 10.3.2005 and ended at 4.45 p.m. on
10.3.2005. It is stated to be done by P.W.1 medical officer and by
the other doctor. The date is shown as 25.8.2005 on the post
mortem note. This apparently, is in tune with the deposition of
P.W.1 that other doctor was not available. At the same time, this
Court notice that on said date 10.3.2005, there is a provisional
death certificate which has been issued, according to P.W.1 him,
to the police immediately. It is in the handwriting of the second
doctor. He deposes that they have both signed on it and the
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contents are true and correct. It is marked as Exh.23. In his
cross it is deposed by him that according to him police machinery
immediately demands provisional death certificate and when the
cause of death is known after post-mortem they immediately
issued the provisional death certificate. [Para 41] [55-H;
56-A-C]
4. It is inter alia certified by the two doctors in the
provisional death certificate that they have done the post mortem
on 10.3.2005 and the probable cause of death seems to be acute
cardiorespiratory arrest secondary to acute asphyxia, secondary
to throttling. The said certificate is dated 10.03.2005. There is
the date, 25.08.2005 on the Post Mortem report. Also, the date
10.03.2005 is shown against the Column-forwarded to the Police
Sub Inspector. But the reason appears to be that though Post
Mortem was conducted on 10.03.2005, it was signed by the doctor
on 25.08.2005. Though it could be argued that the reason for the
date 25.08.2005 is that one of the doctors was not available but
however, on 10.03.2005, in the provisional death certificate how
could both the doctors have signed. It would appear from the
report that second doctor is the Medical Officer of Primary Health
Centre, and it is his non availability after the content were entered
in the Post Mortem report that led to report being delayed.
Though there is a gap, this Court finds assurance from the fact
that the provisional death certificate which is marked as Exh.E23 and which is dated 10.03.2005 corroborates E-22 Post
Mortem. [Para 42] [56-E-H]
5. As far as the injuries in the Inquest report not being
noticed in the post-mortem report is concerned, there can no
doubt that the medical doctor knows exactly what medical injuries
are and ordinarily in case of inconsistency, the medical report of
the doctor should prevail. Having regard to the post mortem
and the evidence of P.W.1, the nature of injuries noticed as
explained by the deposition of P.W.1 unerringly point to the death
being caused by throttling as opined by the doctor. Much may
not turn on the injuries which are alleged to have been noted in
the Inquest not being noted in the post mortem note. [Para 43]
[57-A-B]
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Sawal Das v. State of Bihar (1974) 4 SCC 193 : [1974]
3 SCR 74 ; Sukhram s/o Ramratan v. State of Madhya
Pradesh (1989) Suppl. 1 SCC 214 ; Krishna Govind
Patil v. State of Maharashtra AIR 1963 SC 1413 :
[1964] SCR 678 - referred to.
Case Law Reference
[1974] 3 SCR 74
referred to
Para 6
1989 Suppl. (1) SCC 214
referred to
Para 6
[1964] SCR 678
referred to
Para 35
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1181 of 2011.
From the Judgment and Order dated 23.07.2008 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal
No. 641 of 2006.
D. N. Goburdhan, Adv. for the Appellant.
Anoop Kandari, Nishant Ramakantrao Katneshwarkar, Advs. for
the Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The appellant, calls in question, his conviction under Section
302 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC',
for short) by the High Court. Originally, the appellant was accused no.1
before the Trial Court. Accused nos. 2 to 4 were his parents and his
brother. They were altogether charged with offence under Section 302
read with Section 34 of the IPC. This is besides being charged under
Section 498A of the IPC. The Trial Court convicted all the accused for
offences under Section 302 read with Section 34 and Section 498A of
the IPC. On appeal filed by the appellant and the other accused, accused
nos. 2 to 4 stand acquitted of all the offences. The appellant has also
been acquitted of the offence under Section 498A of the IPC. However,
the High Court, by the impugned order, had convicted him for the offence
under Section 302 of the IPC instead of Section 302 read with Section
34 of the IPC. This is besides a fine.
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA
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2. The prosecution case, in short, is that the appellant and the
other accused committed murder of the wife of the appellant. As already
noticed, the charge was of committing murder under Section 302 read
with Section 34 of the IPC.
3. The father of the deceased lodged a complaint wherein it was
inter alia alleged that the marriage of the appellant and his deceased
wife took place prior to two years as per custom. Half tola gold remained
to be provided. Due to poverty, he could not provide half tola gold. The
accused maintained the deceased properly for the period of first eight
months. Three months prior to the incident, the deceased disclosed to
the complainant and his wife that all the accused were maltreating the
deceased by insisting her to bring half tola gold, dress and Rs. 5,000/-
for business of bakery. They insisted her to bring this from her parents
and assaulted her. They did not provide food to her and maltreated her.
She was threatened with murder if the demand was not fulfilled. So,
deceased decided to stay with her father for two months. Within two
months, nobody from the accused came to receive her. The deceased
disclosed about the maltreatment to his sister. His sister convinced the
deceased and brought her to the house of the accused. Eight days prior
to the incident, his sister informed him that accused Javed visited her
house and demanded half tola gold, dress and the amount. On 10.03.2005,
he received information by phone that deceased was serious and admitted
to a hospital at Naldurg. The complaint activised the Police. Investigation
was done. Charge-sheet was filed. Charges were framed, as already
mentioned. Rejecting the contentions of the appellant and other accused,
the Trial Court convicted them. It was found that the deceased had been
throttled. The evidence of the Doctor, supported the case of murder.
The claim that it was a suicide by the deceased, was rejected.
4. The High Court, however, found only the appellant guilty under
Section 302 of the IPC.
5. We have heard Shri D. N. Goburdhan, learned counsel for the
appellant who appeared before us and also learned counsel for the State.
6. Counsel for the appellant would submit that the case of the
prosecution was one of commission of offence under Section 302 read
with Section 34 of the IPC. It was the case of the prosecution that all
the accused together committed the act of murder. He would complain
that in appeal, when the High Court found it fit to acquit accused nos.2
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to 4, the accused cannot thereafter be convicted. He drew our attention
to the judgment of this Court in Sawal Das v. State of Bihar1 and Sukhram
s/o Ramratan v. State of Madhya Pradesh2.
7. He would submit that when the prosecution failed to establish
the guilt of accused nos.2 to 4, in the circumstances of this case, it must
be taken that prosecution has also failed to establish the case against the
appellant as it would be the case under Section 302 simpliciter. He would
submit that it was a case where the deceased had taken her own life.
Appellant and her brother had married around the same time. Two years
into the marriage, the appellant and his late wife/deceased were not
blessed with a child. On the other hand, a child was born to his brother.
This caused frustration, and finally, led the deceased to take the extreme
step.
8. Next, he would contend that the incident took place and the
post-mortem was conducted allegedly on 10.03.2005. However, the report
is prepared allegedly only on 25.08.2005. Learned counsel posed the
question as to the possibility that the post-mortem report, in fact, may be
related to somebody else. In this regard, he drew our attention to the
deposition of the father of the deceased. Father of the deceased had
deposed that it was true that the marriage of the appellant and the
deceased was performed happily and there was no quarrel between the
spouses. He had also deposed that the custom of jumaki was followed.
That some jumaki was performed in the house of the appellant and
some jumaki was performed in his house. Further, he has stated as
follows:
"It is true that there are four rooms in the house of accused. It
is true that accused Nos.1 and 4 were using separate bed room in
the house. It is true that within six months from the marriage,
when ever Sultana visited to my house, she told me that I had
performed her marriage in proper house and she is happy in the
house of accused. It is true that my daughter was co-operative
and helpful natured girl."
"It is true that when Sultana came to my house for Ramzan'
festival, that time, Sultana told me that I should take her in the
house of accused and there is no entertainment in my house."
1 (1974) 4 SCC 193
2 1989 Suppl. (1) SCC 214
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA
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9. He would further point out that reversing the verdict of the
Trial Court, the High Court has acquitted the appellant as also the other
accused of the charge under Section 498A of the IPC. This means that
the appellant was not found guilty of cruelty under the said provision. It
was, therefore, wholly illogical and not warranted by the evidence to
convict the appellant under Section 302 of the IPC. The inconsistency
between the inquest report and the post-mortem report was highlighted
and it was submitted that it has not received due consideration. He would
submit that the external injuries which were noted in the inquest
panchanama in respect of swelling of the head, ligature mark of rope to
neck, injuries to thigh and back are not noted by the Doctor in the postmortem report. He complains that the Trial Court has got over this by
merely finding that in a case of difference of injuries between the inquest
panchnama and the post-mortem report, the post-mortem report will
prevail over the inquest panchnama. He reminds that the post-mortem
report has been prepared after more than five months from the date on
which the post-mortem was allegedly performed. He would submit that
when doubts were established, the appellant should have been the
beneficiary of doubts. He would further submit that if an adult person is
throttled, there would be resistance and the resistance would be
manifested. There is no evidence of any such resistance. All this points
to the deceased having committed suicide. He further points out that as
noted by the Court itself, it was the appellant who took the deceased to
the hospital. Had the appellant been the culprit, he would have destroyed
the body and certainly not taken the person to the hospital.
10. Per contra, the learned counsel for the State supported the
judgment passed by the High Court. He would point out that as regards
the discrepancy in the date of preparation of the post-mortem report,
questions have been put in the examination of P.W.1 doctor and answers
elicited. There was a valid explanation which was the non-availability of
one of the doctors. He further pointed out that the provisional report
was given on the date of the post-mortem, i.e., on 10.03.2005.
THE FINDINGS OF THE TRIAL COURT
11. The trial court has accepted that the following circumstances
stood proved against the appellant and other accused:
(1)
Motive;
(2)
Custodial death of the deceased;
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(3)
Non-disclosure of death by the appellant to the complainant
(father of the deceased);
(4)
False evidence of accused of hanging;
(5)
Inquest panchnama;
(6)
Spot panchnama.
12. As regards motive, the trial court relied on the evidence of
PW 3 that all the accused were insisting on the deceased to bring half
tola gold which remained to be provided by the time of marriage besides
one choice dress and Rs.5000/- for Bakery business. The appellant
reiterated his demand and repeated his threat to kill deceased if the
demands were not met after eight days of her return to his house. The
trial court also placed reliance on PW 4, the aunt of the deceased in this
regard. It is after the threat mentioned above that the deceased died
after 8 to 10 days. It is found that medical evidence showed that the
death is caused by throttling. All the accused by their joint act -one by
pressing her neck, one by catching hold of her hand, another by catching
hold of her leg and one by pressing her leg killed her. There is medical
evidence to prove violence by killing her by throttling by pressing her
neck. As the demands made by the accused were not fulfilled, in
furtherance of common intention, the appellant's wife was killed. All
the accused were residing in the same house. They participated in the
crime and brought the body before the doctor saying she hanged herself.
Therefore, motive to kill is clearly established. There is no evidence to
prove that PW-4 was at the house.
13. Exhibit 24 is enlisted to show that the appellant brought the
dead body before the doctor. Evidence of the complainant (PW-3) and
PW-4 is referred to show that the deceased was residing with all the
accused in the house. When it is noticed that death took place due to
throttling, then the accused must prove as to how she died. While
explaining in the statement under Section 313 of Cr.P.C., none of the
accused explained about the death of the deceased. The point as to
custodial death was found established.
14. As regards non-disclosure of death by the accused to the
complainant, it is found that PW-3 complainant has deposed that about
8.00 A.M. on the date of the incident, he came to know from Isaq, son
of PW-4 by telephone from Solapur. The accused had not disclosed
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about the death to the complainant. PW-4 has not deposed that she was
intimated. The accused seemed to have kept mum after the death and
has not reported to complainant and other relatives. Also, the Court goes
on to find that a false statement was made regarding the death of the
deceased by hanging which is contrary to the medical evidence.
15. In regard to the inquest panchnama, it is stated that it shows
external injury like rope mark at neck, swelling to head, injury to thigh
and back as well as two teeth from the front side are broken and blood
was oozing from the jaw. It is the case of the accused that the injuries
noted on the thigh, back and swelling to head and ligature mark of rope
to neck is not noted in the post-mortem in Exhibit 22. Therefore, there is
a conflict between the inquest panchnama and the post-mortem report.
The trial Court goes on to find that the external injuries noted in the
inquest panchnama as noted above, were not noted by the doctor in the
post-mortem which is official. It is concluded that when there is difference
of injuries in the inquest panchnama and the post-mortem, post mortem
will prevail over the inquest panchnama because panchnama (witnesses)
are not experts like doctors. Accused cannot get benefit of
inconsistencies. Expert evidence based on scientific method will prevail
over knowledge of ignorant men in that field. It was found that PW-1
was an eminent doctor and in the last five years, he had done many
post-mortems and he was treated as an expert man. Thereafter, the trial
Court also relied upon the spot panchnama. The spot panchnama was
effected on the very day of incident i.e. on 10.3.2005. One rope of nylon
was seized. The spot of incident was one of the rooms situated in the
house of the accused. It is having two-metre height wall. The height of
the room is 5-feet 10-inches. The photograph of the deceased, the
panchnama and the photograph of the place of the incident proved by
PW-5 led the Court to hold that the height of the room is such that it was
not probable for any person having normal height to hang in that room
and normal height of the man is 5 feet or more. The Court further proceeds
to find that the F.I.R. is late but goes on to hold that merely because the
F.I.R. is late, it does not mean that the case is false. Having referred to
the circumstances, the Court also found that the complaint was filed by
the complainant late on the next day at the night hours but the explanation
of the complainant that due to death of his daughter, he was unhappy
was found acceptable. Regarding the contention of the accused that it
was a case of suicide as the deceased had not delivered a child whereas
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the wife of the fourth accused (sister-in-law) of the deceased had
delivered a child and therefore, she was frustrated was found
unacceptable. The deceased was only 20 years old. At the age of 20
years, it could not be said that she cannot become pregnant in future. It
was found that it was nobody's case that the deceased was having some
problem having a child. There is no case of any medical treatment.
FINDINGS OF THE HIGH COURT
16. This is a case entirely based on circumstantial evidence. The
deceased was living in her matrimonial home. She was living with her
husband. As regards the case under Section 498A IPC is concerned,
the High Court finds that there is reason to infer that the deceased was
leading a happy married life. The following part of the cross examination
of the PW 3, father of the deceased is relied upon:
"It is true that there are four rooms in the house of accused. It
is true that accused Nos. 1 and 4 were using separate bed room
in the house. It is true within six months from her marriage,
whenever Sultana visited to my house, she told me that I had
performed her marriage in proper house and she is happy in the
house of husband. It is true that my daughter was co-operative
and helpful natured girl."
"It is true that when Sultana came to my house for Ramzan'
festival, that time, Sultana told me that I should take her in the
house of accused and there is no entertainment in my house."
17. On the basis of the aforesaid, the High Court finds that the
same speaks of a different story. The deceased expressed her desire to
return to the place of her husband (appellant) at a point earlier than
contemplated by her father. It is found that there was ample admission
on the part of the father of the deceased and his sister that the parents
did not take any legal steps such as lodging complaint with the police
station nor did they call elderly and respectable relatives for a meeting
and inviting accused persons to explain their conduct. The High Court
found it difficult to believe that there was a persistent demand from all
the four accused. In view of certain admissions, PW 4 aunt of the
deceased was found unreliable. The High Court found that it was difficult
to believe that all the four accused were persistently demanding gold or
amount and for pressurising the deceased or that they were subjecting
her to ill treatment such as physical beating or starvation. It is thereafter
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA
[K. M. JOSEPH, J.]
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that the case of the appellant was found to stand on a different footing.
The deposition of PW 4 is noted, namely, "thereafter after 8 days Javed
accused came to my house at Solapur. He told me that his father-in-law
has not provided gold, cloth and money till now and if it is not provided,
he will kill sultana and thus by giving the threat he went away." The
conveying of the aforesaid message to him by his sister on telephone
gave assurance to the deposition of PW4. If at all, it was found that
there was pressure upon the deceased for complying with the demands,
it was from appellant alone. As regards the circumstances relied upon
by the trial Court in regard to their motive, the High Court proceeds to
find that the motive is not proved as against accused 2 to 4 in as strong
manner as against the appellant. As far as the custodial death is
concerned, it was found from Exhibit 24 that the deceased died sometime
before 7.15 a.m. Post-mortem was performed at 3.30 p.m.. Therefore,
it can be ascertained that the death ensued 12 hours earlier sometime
about 3.30 a.m. Support from P.W.3 is drawn to conclude that the two
newly married couple were using separate bed room which allowed the
accused 2 to 4 to escape from the allegation of custodial death against
them at that time of the day and only the couple is bound to be in the bed
room. Therefore, custodial death was proved only against the appellant.
Referring to the prosecutor's argument based on the injuries of the
deceased that it was not the husband alone but others as held, was not
found the only possible inference. Breaking of the front teeth was
indicative of some violence. The High Court proceeds to find that a
possibility cannot be ruled out that the victim was found unguarded and
last but not the least, the impression injury on the thigh and ankle cannot
be ruled out, even though the sole assailant tried to pin down the victim
by riding on the person of the victim and putting pressure on the thighs
by his knees and on the ankles by his feet. It is found that although
admissions are obtained from the doctor that such injuries are possible if
the victim is gripped by someone else such admission is to be read only
to the extent of medical opinion, that is, the injuries are possible, if the
pressure is put on the thighs or ankles gripped. It was found an inference
of involvement of more than one accused on the basis of medical
evidence, is a matter of imagination and therefore somewhat risky. Lastly,
the statement of the appellant when he had admitted the deceased to the
hospital that he had brought up the deceased for treatment that she had
hanged herself in an attempt to commit suicide, was used against the
appellant as it was found to be settled legal position that false information
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by the deceased who is obliged to offer explanation for death is a
circumstance which strengthens the chain of circumstantial evidence.
It is accordingly that the appeal was partly allowed. His conviction
under Section 498-A IPC was set aside, so was his conviction under
Section 302 read with Section 34 IPC and he stood convicted under
Section 302 IPC alone. The appeal filed by the other three accused was
allowed.
THE POST MORTEM REPORT
18. The injuries noted in paragraph 17 of the Post Mortem report
are as follows:
"Bruising and ecchymosis present on both sides on neck from
center to laterally on both sides of neck about 7 cm x 1 cm.
1.
Abrasion (crescentric) present on left side extending from
center to lateral about 5 cm long.
2.
Pale pressure mark present over both legs ante collaterally
over ankle region about 7 cm x 1 cm.
3.
Contusion of upper lip 3 cm x 2 cm."
Under paragraph 20 which deals with injuries to the Thorax region,
the following injuries have been noted:
"A] Walls, ribs, cartilages/ a & b are noted as normal.
B] Pleura.
C] Larynx, trachea and bronchi
1. Subcutaneous tissue over both lateral aspect of both side
swollen and subcutaneous haemorrhage present.
2. Both sternomastoid muscle crushed and severe haemorrhage
present beneath it.
3. Thyroid cartilage crushed laterally on both sides more on
left side.
4. Cricoid cartilage crushed on both sides.
5. Multiple small clots of blood seen around the laryangeal
cartilages.
D] Right Lung-Both lung congested.
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E] Left Lung - with petechiae and exuding dark blood on section.
G] Heart with weight - Left side contained little blood, Right side
of the heart contained full of dark fluid blood.
Bucal cavity, teeth gongue: Upper left central incisor partly broken
and right central incisor totally broken within bleeding from gums."
Stomach contents were noted as empty.
OPINION AS TO THE CAUSE
19. It is stated that Dr. I.C. Kolle and Dr. A.I. Syed have done the
post-mortem on 10.03.2005. Under the opinion as to the probable cause
of death, it is written Acute Cardio respiratory arrest. Secondary to
acute asphyxia secondary to throttling. The report is signed dated
25.08.2005. In the last page it is stated, forwarded to the police custody
and the date is shown as 10.03.2005.
DEPOSITION OF P.W.1 - THE DOCTOR WHO CARRIED
OUT THE POST MORTEM
20. PW.1 is Dr. I.C. Kolle aged 32 years. He states that he has
carried out nearly 32 post-mortems during his service period. On
10.03.2005 he received the dead body of the deceased in this case from
the police station. He started doing post-mortem at about 3.30 p.m. and
completed by about 4.45 p.m.. The inquest panchnama was given to
him by the concerned police station. He noticed eyes semi open, tongue
within mouth which has been noted at paragraph 13 of the post-mortem
note. He noticed 4 injuries on the dead body and those were noted as
surface wounds and the injuries are at paragraph No.17 of the postmortem note. He further deposed that these are surface injuries and
ante-mortem injuries. These injuries occurred due to throttling by pressing
neck by fingers and palm. Thereafter, he noted the injuries which we
have already extracted. He prepared the note. It is in his handwriting
and signed by him. Dr. Syed was with him as colleague and he also
signed on the post-mortem note. Injuries 1 and 2 noted in paragraph 17
are corresponding to the internal injury of Larynx, trachea and bronchi
noted in paragraph 20 are only probable by pressing the neck by using
fingers and palm. These injuries are sufficient to cause the death of the
deceased. The external injury, namely No.4, that is contusion of upper
lip is corresponding to injury to teeth and tongue. These two injuries are
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probable by pressing the mouth by hand. Paragraph 7 and 8 of the PW1
deposition:
"Injury no. 3 noted in para no. 17 occurred to both legs are
probable by caught hold of both the legs with pressure of hand.
Injury nos. 1 to 4 are probable at once, if one person caught
hold the legs by pressing with his hands of that deceased, one
person if press the mouth by his hand and another person press
the neck by his hand and all these persons acted so at one time, to
deceased, injury nos. 1 to 4 are probable at one time."
He agrees with the proposition given by Modi's Medical
Jurisprudence, 22nd edition at page no.333 "Bruises or contrusion injuries
which are caused by compression. He also agrees with the following
statement contained in Modi on Medical Jurisprudence 22nd Edition:
"Suicidal strangulation is not very common, though sometimes
cases are met with. In these cases, some contrivancem is always
made to keep the ligature tight after insensibility supervenes. This
is done by twisting a cord several times round the neck and then
tying a knot, which is usually single and in front or at the side or
back of the neck, by twisting a cord tightly by means of a stick,
stone or some other solid material, or by tightening the ends of a
cord by tying them to the hands or feet or to a peg in a wall or to
the leg of bed. In such cases, injuries to the deep structures of the
neck and marks of violence on other parts of the body are, as a
rule, absent."
He agrees with the said proposition. He says according to him in
suicidal death there are no marks of violence and in homicidal death
there are marks of violence. He also agrees with the following proposition
from the work Modi's Medical Jurisprudence at page 270:
"3. Saliva- Dribbling out of the mouth down on the chin and chest.
4. Neck - Stretched and clongated in fresh bodies.
7. Ligature mark - Oblique, non-continuous placed high up in the
neck between the chin and the larynx, the base of the groove or
furrow being hard, yellow and parchment- link.
10. Injury to the muscles of the neck- Rare.
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14. Scratches, abrasions and bruises on the face, neck and other
parts of the body - Usually not present."
21. He states that the above features can be noticed in a case of
hanging and he agrees with the same proposition. While doing postmortem he deposed he has not noticed any of the above symptoms on
the dead body and it is not noted in the post-mortem as it is not seen. He
definitely opines that in the given case, the death occurred due to throttling
by external violence and it is homicidal death. He goes on to depose that
injury No.2 and 3 in column 20 of the post mortem are only to be noticed
in case of homicidal death. And these are marks of violence and thus
cannot be noticed in case of hanging and suicidal death. He issued Exh.
23 provisional death certificate immediately to the police. It is in the
hand writing of Dr. Syed. Both he and Dr. Syed have signed it. In cross
examination he would state as follows:
The dead body of the deceased was brought at about 7 to 7.30
a.m. After checking the deceased was declared dead and
information was given to the police. He denies that when
deceased was brought she was alive. He denies that he was
confused and the exact time of the death was not mentioned.
Rigor Mortis was stated to develop 3 hour after death and
completes within 12 hours. He has not preserved the viscera.
According to him Police Commissioner immediately demanded
provisional death certificate. He denies that he issued the postmortem report on 25.08.2005. The post-mortem note was already
prepared and one doctor was not available to sign it and therefore
after signing it, it was issued. He denies that he has prepared on
25.08.2005. He further denies that when the body of deceased
was brought, it had elongated neck. He states it is untrue to say
that Injury No.1 in para 17 of the post-mortem note can appear in
case of hanging also. Bruises and ecchymoses are sometimes
seen in case of hanging also in the groove of the ligature mark.
He deposed that it is not true that Injury No.3 in para No.17 of the
PM note is not at all possible to occur when the body is in hanging
condition and some persons by catching one leg and another leg
are trying to remove the dead body. He says in further cross
examination that it is true that Injury No.1 in para 20(c) of postmortem note is probable in the case of hanging. As far as Injury
No.2 in Para 20(c), he states that it is not true that Injury No.2
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occur in the case of hanging. He also deposed that it is not true to
say that in the case of hanging thyroid cartilage may be crushed.
He has not seen nail mark and scratch of nail mark on the face or
neck of the deceased. He deposed that these types of marks
used to be present in the case of throttling but it is not necessary
to be present.
Injury No.5 at 20(c) occur in the case of hanging. Lungs getting
congested is common in hanging as well as throttling. He further
says that it is not true to say that in the case of hanging when
person is struggling in that case teeth may break. He further says
it is not true to say that saliva was coming out from the mouth of
the deceased and relatives were cleaning it. He has not seen
whether the face of the deceased was pale or not. In the case of
strangulation by rope or 'Dupatta', the ligature mark may be noticed
around the neck. While doing post-mortem he has noticed injuries
at the head and back of the deceased. It is true that in the case of
hanging, the eyes used to close or used to remain in semi close
condition. It is true that in the case of hanging fracture of larynx
and trachea - often found also hyoidbone. It is true he says that
the deceased had not faced fracture to larynx, trachea and
hyoidbone. In the case of hanging fracture by larynx and trachea
- very rare and that too in judicial hanging. He denies that her
stomach may remain empty due to vomiting. In cross examination
for the 4th accused, he states inter alia as follows:
In case of hanging and in case of throttling pressure on neck is
common factor. In the case of throttling by hand, a person can
resist that throttling. In case of resistance there will be mark
of nail on neck. The person who is facing throttling when one
person is pressing the mouth and other person is catching the
legs by using pressure of his hands he will resist by banging
the hand on earth in that case there will be injuries to hands. It
is probably if the legs are caught hold by hand, then it is possible
to occur injury at posterior side of the leg. In post-mortem, noinjury marks on hands are noted. And also no injury marks at
posterior side of leg is noted. He deposed that it is not true
that the injuries in para 17 are possible by accident and by
assault also. He also says that it is not true to say that the
injuries shown in in para 20 are possibly by hanging. Ligature
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mark are occurred on the basis of smoothness and hardness
of the things used for occurring of the ligature mark. It is true
that if the smooth article like 'Dupatta of Malmal' used for
hanging then there will be no ligature mark on the leg. He
states it is not true that Injury Nos. 1 to 4 noted in paragraph
17 are probable to occur one by one and not at once. It is not
true that in case of hanging injury No.3 is possible by coming
into contact of legs with stool and table etc. If only external
injury No.1 and 2 occurred as shown in paragraph 17 and
immediately medical aid is provided he may survive. In the
case of throttling by hands by using fingers and palm there
cannot be fracture of larynx. In re-examination he said that in
the case of strangulation by hand fracture of larynx and trachea
is not necessary to be occurred even though it is said in column
No.12 of strangulation at page No.270 (apparently in Modi's
work). According to him, fracture of larynx and trachea used
to occur in strangulation but in the case of throttling by hand
such fracture cannot occur. By using hard and blunt object
like stone and stick if the strangulation is caused, in that case
fracture of larynx and trachea often found also hyoidbone.
22. The differences between hanging and strangulation have been
highlighted by Modi on Medical Jurisprudence and Toxicology, 25th Edition,
as follows:
Hanging
Strangulation
1.
Most suicidal.
1.
Mostly homicidal.
2.
Face-Usual pale and
2.
Face-Congested, livid and
petechiae rare.
marked with petechiae.
3.
Saliva-Dribbling out of
3.
Saliva-No such dribbling
mouth down on the chin
and chest.
4.
Neck-Stretched and
4.
Neck-Not so.
elongated in fresh bodies.
5.
External signs of asphyxia
5.
External signs of asphyxia,
usually not well marked.
very well marked (minimal if
death due to vasovagal and
carotid sinus effect.
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6.
Ligature mark-Oblique,
6.
Ligature mark-Horizontal or
Non-continuous placed high
transverse continuous, round
Up in the neck between the
the neck, low down in the neck
Chin and the larynx, the
below the thyroid, the base of
Base of the groove or furrow
the groove or furrow being
Being hard, yellow and
soft and reddish.
Parachment-like.
7.
Abrasions and ecchymoses
 7. Abrasions and ecchymoses round
round about the edges of
about the edges of the ligature
the ligature mark, rare.
Mark, common.
8.
Subcutaneous tissues
 8. Subcutaneous tissues under the
Under the mark-White,
mark-Ecchymosed.
Hard and glistening.
9.
Injury to the muscles of
 9. Injury to the muscles of the neckNeck-Rare.
Common.
10. Carotid arteries,
10. Carotid arteries, internal coats
Internal coats ruptured in
ordinarily ruptured.
11.