# SHANTIBHAI J. VAGHELA AND ANR v. STATE OF GUJARAT AND ORS

- **Citation:** [2012] 12 S.C.R. 544
- **Court:** Supreme Court of India
- **Decided:** 2012-11-09
- **Case number:** Criminal Appeal No. 1805 of 2012
- **Bench:** P. Sathasivam, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shantibhai-j-vaghela-and-anr-v-state-of-gujarat-and-ors-28263
- **Pages:** 21

## Headnote

Code of Criminal Procedure, 1973- s.482 - Two minors
residing in a Ashram went missing - Couple of days later, their
c dead bodies found from the bed of the river located by the
side of the Ashram - FIR lodged against seven inmates of
the Ashram u/s.304 /PC and other offences - Quashed by
High Court insofar as s.304 /PC was concerned- Justification
- Held: There was absence of any acceptable material
. 0
disclosing commission of offence u/s.304 /PC - Principal
a/legations made in the FIR- of not carrying out a prompt
search of the missing children; of delay in lodging of formal
complaint with the police and failure to take adequate
measures to guard the access from the ashram to the river,
E cannot make out a case punishable uls.304 /PC - Further,
the post mortem report pointed to the possibility of death due
to drowning - High Court, thus, did not err in exercising its
jurisdiction to interdict investigation of the offence u/s. 304 /PC
against the accused named in the FIR - Such power, though
F
must be exercised sparingly, has to be invoked if the facts of
any given case so demand - This is precisely what the High
Court did in the present case without departing from any of
the well settled principles of Jaw - Penal Code, 1860 - s. 304.
'
Two children studying and also residing in a Gurukul
G located in a Ashram went missing. A couple of days later,
their dead bodies were found from the bed of the river
located by the side of the Ashram. FIR was formally
lodged in respect of the incident alleging commission of
offences under Section 304/34 of IPC and Section 23 of
H
544
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF
545
GUJARAT AND ORS.
the Juvenile Justice (Care and Protection) Act, 2000.
A
Seven inmates of the Ashram were named as accused.
The specific stand taken in the FIR was that had a prompt
search been carried out, possibly, the children could have
been found alive or, at least, the dead bodies could have
been recovered earlier so as to enable an effective postB
mortem of the bodies to determine the precise cause of
death. It was also alleged that the Ashram authorities had
advised the parents of the child_ren to resort to various
tantric practices to find out about the whereabouts of the
children instead of promptly approaching the police. The c
failure of the said authorities to effectively man the gates
behind the ashram adjoining the river bed was also
highlighted in the FIR as another omission on the part of
the ashram authorities so as to give rise to the
commission of the offence of culpable homicide.
D
The High Court, however, quashed the FIR insofar as
Section 304 IPC was concerned, and therefore the
present appeals.
Dismissing the appeals, the Court
HELD: 1. Commission of the offence of culpable
homicide would require some positive act on the part of
the accused ;:is distinguished from silence, inaction or a
mere lapse. Allegations of not carrying out a prompt
search of the missing children; of delay in the lodging of
formal complaint with the police and failure to take
adequate measures to guard the access from the ashram
to the river, which are the principal allegations made in
E
F
the FIR, cannot make out a case of culpable homicide not
amounting to murder punishable under Section 304 IPC.
G
To attract the ingredients of the said offence something
more positive than a mere omission, lapse or negligence
on the part of the named accused will have to be present.
Such statements are conspicuously absent in the FIR
H
546
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A filed in the present case. A reading of the relevant part of
the opinion of the Forensic Medicine Department of the
Medical College would go to show that possibility of
death qf the children by drowning cannot be ruled out.
Expert opinion available on record indicatef' that mere
B absence of diatom will not exclude the aforesaid
possibility. The relevant part of the post mortem report,
as extracted, indicates presence of mud in the trachea of
the children w

## Text

[2012] 12 S.C.R. 544
A
SHANTIBHAI J. VAGHELA AND ANR.
B
v.
STATE OF GUJARAT AND ORS.
(Criminal Appeal No. 1805 of 2012)
NOVEMBER 9, 2012
[P. SATHASIVAM AND RANJAN GOGOi, JJ.]
Code of Criminal Procedure, 1973- s.482 - Two minors
residing in a Ashram went missing - Couple of days later, their
c dead bodies found from the bed of the river located by the
side of the Ashram - FIR lodged against seven inmates of
the Ashram u/s.304 /PC and other offences - Quashed by
High Court insofar as s.304 /PC was concerned- Justification
- Held: There was absence of any acceptable material
. 0
disclosing commission of offence u/s.304 /PC - Principal
a/legations made in the FIR- of not carrying out a prompt
search of the missing children; of delay in lodging of formal
complaint with the police and failure to take adequate
measures to guard the access from the ashram to the river,
E cannot make out a case punishable uls.304 /PC - Further,
the post mortem report pointed to the possibility of death due
to drowning - High Court, thus, did not err in exercising its
jurisdiction to interdict investigation of the offence u/s. 304 /PC
against the accused named in the FIR - Such power, though
F
must be exercised sparingly, has to be invoked if the facts of
any given case so demand - This is precisely what the High
Court did in the present case without departing from any of
the well settled principles of Jaw - Penal Code, 1860 - s. 304.
'
Two children studying and also residing in a Gurukul
G located in a Ashram went missing. A couple of days later,
their dead bodies were found from the bed of the river
located by the side of the Ashram. FIR was formally
lodged in respect of the incident alleging commission of
offences under Section 304/34 of IPC and Section 23 of
H
544
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF
545
GUJARAT AND ORS.
the Juvenile Justice (Care and Protection) Act, 2000.
A
Seven inmates of the Ashram were named as accused.
The specific stand taken in the FIR was that had a prompt
search been carried out, possibly, the children could have
been found alive or, at least, the dead bodies could have
been recovered earlier so as to enable an effective postB
mortem of the bodies to determine the precise cause of
death. It was also alleged that the Ashram authorities had
advised the parents of the child_ren to resort to various
tantric practices to find out about the whereabouts of the
children instead of promptly approaching the police. The c
failure of the said authorities to effectively man the gates
behind the ashram adjoining the river bed was also
highlighted in the FIR as another omission on the part of
the ashram authorities so as to give rise to the
commission of the offence of culpable homicide.
D
The High Court, however, quashed the FIR insofar as
Section 304 IPC was concerned, and therefore the
present appeals.
Dismissing the appeals, the Court
HELD: 1. Commission of the offence of culpable
homicide would require some positive act on the part of
the accused ;:is distinguished from silence, inaction or a
mere lapse. Allegations of not carrying out a prompt
search of the missing children; of delay in the lodging of
formal complaint with the police and failure to take
adequate measures to guard the access from the ashram
to the river, which are the principal allegations made in
E
F
the FIR, cannot make out a case of culpable homicide not
amounting to murder punishable under Section 304 IPC.
G
To attract the ingredients of the said offence something
more positive than a mere omission, lapse or negligence
on the part of the named accused will have to be present.
Such statements are conspicuously absent in the FIR
H
546
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A filed in the present case. A reading of the relevant part of
the opinion of the Forensic Medicine Department of the
Medical College would go to show that possibility of
death qf the children by drowning cannot be ruled out.
Expert opinion available on record indicatef' that mere
B absence of diatom will not exclude the aforesaid
possibility. The relevant part of the post mortem report,
as extracted, indicates presence of mud in the trachea of
the children which fact also point to the possibility of
death by drowning. The absence of any injuries on the
c body of the deceased; the attack on the bodies by wild
animals and the possibility of the taking away of the
missing organs of one of the deceased by wild animals
are all mentioned in the post-mortem report. The said
facts cannot be excluded or ignored while construing the
0 prima facie liability of the accused named in the FIR. The
absence of any positive material to show the practice of
black magic in connection with the incident is another
sjgnificant fact that has to be taken note of. Taking into
aecount all the aforesaid facts it cannot be said that the
High Court, in the present case, had committed any error
E in exercising its jurisdiction to interdict the investigation
of the offence under section 304 IPC against the accused
named in the FIR. Such power, though must be exercised
sparingly, has to be invoked if the facts of any given case
so demand. This is precisely what the High Court had
F done in the present case without departing from any of
the well settled principles of law. Nevertheless, the
powers of the Trial Court under Section 216 or Section
323 CrPC will always be available for exercise if
subsequent facts would justify resort to either of the
G provisions. [Paras 19, 20] [562-E-H; 563-A-G]
H
Asmathunnisa v. State of Andhra Pradesh rep. by the
Public Prosecutor, High Court of Andhra Pradesh, Hyderabad
(2011) 11 SCC 259: 2011 (3) SCR 1116; Central Bureau of
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 547
GUJARAT AND ORS.
Investigation & Ors. v. Keshub Mahindra & Ors. (2011) 6 SCC
A
216: 2011 (6) SCR 384; and Narmada Bai v. State of Gujarat
& Ors. (2011) 5 sec 79: 2011 (5) SCR 729 - relied on.
Case Law Reference:
2011 (3) SCR 1116
2011 (6) SCR 384
2011 (5) SCR 729
relied on
relied on
relied on
Para 19
B
Para 20
Para 20
CRIMINAL APPELATE JURISDICTION: Criminal Appeal c
No. 1805 of 2002.
From the Judgment & Order dated 10.01.2011 of the High
Court of Gujarat at Ahmedabad in Special Criminal Application
No. 770 of 2009.
WITH
Crl. Appeal Nos. 1806-1807 of 2012.
D
H.P. Raval, ASG, Colin Gonsalves, Shekhar Naphade,
Sevtlana C., lyyer, Jyoti Mendiratta, Hemantika Wahi, Pinky
E
Behra, Devadatt Kamat, Rajesh lnamdar, Vipin Sandhu, Rauf
Rahim, Vikas Malhotra, Sunil Roy, Anando Mukherjee, P.K.
Dey, Shriniwas Khalap, Palash Konwar, B.V. Bairam Das,
Arvind Kumar Sharma, Sanjay Jain for the Appearing Parties.
The Judgment of the Court was delivered by
RANJAN GOGOi, J. 1. Leave granted.
F
2. The present appeals seek to challenge a judgment
dated 10.01.2011 passed by the High Court of Gujarat at
Ahmedabad allowing Criminal Miscellaneous Application No.
G
13519 of 2009 filed by the accused (respondents herein)
seeking quashing of the criminal case registered against them
under Section 304 of the Indian Penal Code. By its aforesaid
order the High Court has also dismissed Special Criminal
Application No. 770 of 2009 filed by the appellants, Shantibhai
H
548
SUPREME COURT REPORTS
[2012) 12 S.C.R.
A J. Vaghela and Prafulbhai J. Vaghela, seeking investigation of
the aforesaid case against the accused by the Central Bureau
of Investigation. The High Court has, however, directed that the
proceedings against the accused -respondents so far as the
offence under Section 304A of the IPC and Section 23 of the
B Juvenile Justice (Care and Protection) Act, 2000 may continue.
3. The core facts in which the aggrieved parties had
moved the High Court may now be noticed:
The appellants - Shantibhai J. Vaghela and Prafulbhai J.
c Vaghela, who are related to each other, are the fathers of one
Dipesh (born 1998) and Abhishek (born 1999). The aforesaid
two children were admitted in Class VI and V respectively in a
Gurukul located in an Ashram of Sant Shree Asharamji situated
at Motela. They were residing in the Gurukul of the Ashram. On
0 03.07 .2008 both the children had gone to the dining hall of the
Gurukul at about 8.00 PM to have their dinner. At the time of
taking the attendance of the students after dinner, the
watchman, one Shri Naresh Dangar, could not find the children
and therefore had informed the said fact to Gruhapati Shri
E Pankajbhai Saksena. On receipt of the said information the
aforesaid person, i.e. Pankajbhai Saksena contacted the
appellant - Prafulhai J. Vaghela on telephone to convey the
information that the children were not to be found in the Gurukul.
Both the appellants - Shantibhai B. Vaghela and Prafulbhai J.
Vaghela immediately came to the Gurukul and after meeting
F Pankajbhai Saksena and some other persons working in the
Gurukul, the appellants went in search of the missing children.
However, they could not be recovered till about 12.30 AM. At
the suggestion of Shri Pankajbhai Saksena that the children
may have gone to sleep in some other place the search for the
G children was abandoned and resumed at about 6.00 AM of the
following morning, i.e., 04.07.2008. Though the search had
continued throughout the day the children could not be located.
The appellants insisted that the Ashram should inform the police
about the disappearance of the two children. However, the
H
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 549
GUJARAT AND ORS. [RANJAN GOGOi, J.]
Ashram authorities avoided doing so on one pretext or the other
A
and eventually the appellants themselves informed the
concerned police station at about midnight of 04/05.07.2008.
On 05.07.2008 at about 6.30 PM the dead bodies of the
children were found from the bed of the river Sabarmati which
was located by the side of the Ashram. The dead bodies were
B
promptly sent for post-mortem examination and, thereafter, were
handed over to the respective families for cremation.
4. It appears that there was a public out cry over the
incident and the State Government by Notification dated
21.07.2008 appointed a Commission of Inquiry consisting of C
a retired Judge of the High Co:..irt of Gujarat. It appears that an
elaborate inquiry/investigation of the incident was carried out,
initially, by the Sabarmati Police Station of Ahmedabad city
and, thereafter, by the CID Crime Branch under the direct
supervision of Deputy Inspector General of Police. In the course
D
of the inquiry, statements of the several inmates of the Ashram
were recorded. Of particular significance would be the
examination of one Hetalben Swarupbhai who had first noticed
the dead bodies floating in the Sabarmati river at about 10.00
AM of 04.07.2008. In the course of the aforesaid inquiry/
E
investigation summons under Section 160 of the Code of
Criminal Procedure were issued to Journalists of different
newspapers as well as the electronic media to gather
information with regard to the incident in question. Similarly, a
press note was also issued in the newspapers asking for
F
information in respect of the incident. However, there was no
response to the summons issued or the press note published
by the investigating agency. While the aforesaid inquiry/
investigation was continuing, the appellants - Shantibhai J.
Vagehla and Prafulbhai J. Vaghela instituted Special Criminal
G
Application No.770 of 2009 in the High Court. In the said
application details of the incident, as noticed above, were
mentioned by the appellants who had sought an order directing
the Superintendent of Police, CBI, Gandhinagar (impleaded as
respondent No.2) to register the criminal offence(s) as may be
H
disclosed by the statements made in the application filed
550
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A before the High Court and for further directions to carry out a
proper investigation in respect of the incident of the mysterious
death of the two children.
5. During the pendency of the aforesaid Special Criminal
Application No.770 of 2009, FIR dated 07.11.2009 was
8 fonmally lodged by one Shri H.B. Rajput, Inspector, CID Crime,
Gandhinagar in the Gandhinagar Police Station in respect of
the incident alleging commission of offences under Section
304/34 of the Indian Penal Code and Section 23 of the Juvenile
Justice (Care and Protection) Act. Seven inmates of the
C Ashram were named as the accused who were suspected to
be involved with the offences alleged.
6. The FIR lodged against the seven inmates of the
Ashram, in so far as the offence under Section 304 IPC is
D concerned, came to be challenged before the High Court by
the accused named therein. Criminal Miscellaneous Application
No. 13519 of 2009 filed by the aforesaid accused was heard
along with Special Criminal Application No. 770 of 2009 filed
by appellants - Shantibhai J. Vaghela and Prafulbhai J.
E Vaghela. Both the applications were disposed of by the High
Court by the impugned order dated 10.01.2011. As already
noticed, the High Court, on the basis of the conclusion that no
offence against the accused under Section 304 IPC was made
out, has quashed the FIR in so far as the aforesaid provision
of the Penal Code is concerned. However, investigation and
F further steps with regard to the offence under Section 304 A
and Section 23 of the Juvenile Justice (Care and Protection)
Act is concerned was permitted to continue. The High Court
by the aforementioned order also disposed of Special Criminal
Application No. 770 of 2009 filed by the two appellants as
G having become infructuous. Aggrieved by the said aforesaid
order dated 10.01.2011 the State of Gujarat and the parents
of the deceased children - Shantibhai J. Vaghela and
Prafulbhai J. Vaghela have instituted the present appeals. It may
be specifically noticed, at this stage, that while the appeals had
H remained pending before the Court, charge sheet dated
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF
551
GUJARAT AND ORS. [RANJAN GOGOi, J.]
31.08.2012 under section 304-A/34 and section 114 IPC as
A
well as Section 23 of the Juvenile Justice (Care and Protection)
Act has been submitted against the 7 accused named in the
FIR dated 7.11.2009.
7. We have heard Shri Colin Gonsalves, Learned senior
counsel for the appellants Shantibhai J. Vaghela and Prafulbhai
B
J. Vaghela, Mrs. H. Wahi, learned counsel for the State, Shri
Shekhar Naphade, learned senior counsel for the respondents
and Shri H.P. Raval, ASG.
8. Shri Gonsalves has very elaborately taken us through
C
the materials on record particularly the Fl R dated 07 .11.2009,
the post-mortem reports and the several correspondences
exchanged between the officers of the investigating agency and
the Department of Forensic Medicine, BJ Medical College,
Ahmedabad as well as the Deputy Director of the State ·D
Forensic Laboratory with regard to certain findings recorded
in the post-mortem report. It has been submitted that a
consideration of the aforesaid materials clearly indicate that the
High Court was not justified in interdicting the investigation of
the case registered in so far as the offence under Section 304
IPC is concerned. According to the learned counsel, there is
E
ample room for due investigation of the said offence and,
therefore, the same should be allowed to be brought to its
logical conclusion. It is further submitted that notwithstanding the
filing of the charge sheet dated 31.08.2012 there is ample
power in the court to order investigation in so far as the offence
F
under Section 304 IPC is concerned. It is also contended that
having regard to the pre-eminent social status of the Bapuji
Ashram and the evident role of the Ashram authorities in
scuttling the fair investigation of a palpable crime, further
investigation by the independent agency like the CBI should be
G
ordered by this court.
9. Learned counsel for the State of Gujarat has submitted
that the State is aggrieved by only that part of the order by which
investigation of the offence under Section 304 !PC has been
H
552
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A interfered with by the High Court. Learned State counsel has
categorically submitted that further/fresh investigation in so far
as the offence under Section 304 IPC is concerned can be
effectively performed by the State Police and in fact the State
is agreeable to constitute a Special Investigation Team for the
B said purpose if so ordered by the court.
10. In reply, Shri Naphade, learned senior counsel for the
accused, has urged that registration of a FIR alleging a specific
criminal offence against any person and investigation of the
same can be made only on the basis of some acceptable
C material disclosing the commission of the offence alleged. No
such basis is discernible in the present case. According to
learned counsel a reading of FIR does not reveal any material.
to establish any of the ingredients of the offence under Section
304 IPC against any of the accused. What has been alleged
D in the FIR, according to learned counsel, is negligence or
lapses on the part of the Ashram authorities in not conducting
a timely, proper and effective search of the missing children;
in not informing the police about the incident and in not blocking
the passage from the Ashram to the Sabarmati river. The High ·
E Court, according to learned counsel, therefore, rightly ordered
investigation of the offence under Section 304 A IPC and
charge sheet has been filed against all the accused under the
aforesaid Section of the Penal Code. Shri Naphade has further
urged that no material, whatsoever, has been brought on record
F to implicate any of the accused with the offence under Section
304 IPC. Shri Naphade has also submitted that the post-mortem
report does not rule out and, in fact, the same strongly suggests
that death of children had occurred due to drowning and the
injuries on the bodies and the disappearance of some of the
vital organs of deceased - Dipesh is due to the attack on the
G dead body by wild animals. Learned counsel, therefore, has
contended that no case for further investigation, much less by
an independent agency, is made out.
11. It may be appropriate at this stage to notice the opinion
H rendered by the Department of Forensic Medicine, BJ Medical
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF
553
GUJARAT AND ORS. [RANJAN GOGOi, J.]
College, Ahmedabad with regard to the cause of death of A
Dipesh and Abhishek which may be conveniently extracted
below:.
"Deceased Dipesh Prafulbhai Vaghela:
-Body is in stage of decomposition and mutilation.
B
-No ante mortem injury is detected over available parts
of body.
-Toxicology report shows "No chemical poison detected. c
-FSL report shows "Presence of diatoms could not
detected.
Considering above, FSL report and postmortem findings
possibility of death due to drowning cannot be ruled out,
D
however, "no definite opinion regarding cause of death can be
· given."
Deceased Abhishek Shantilal Vaghela:
"-Body is in stage of decomposition.
-No ante mortem injury is detected over available parts of
body.
-Toxicology report shows "No chemical poison detected".
-FSL report shows "Presence of diatoms could not
detected.
E
F
Considering above, FSL report and postmortem findings
possibility of death due to drowning cannot be ruled out.
However, "no definite opinion regarding cause of death can be
G
given."
12. To appreciate the contentions advanced by the rival
parties, relevant portions of the post-mortem report of Dipesh
Prafulbhai Vaghela may also be extracted hereunder:
H
554
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A
"
(2) External examination
B
(12) Proof of dead body & it
signs - (during examination
of dead body its - hips, waist,
dead body & thighs or some
growth, blackening of some
c parts after death if any) if
swelling of any part then
examination of fluid in it &
condition of the skin.
D
E
F
G
H
Body
is
in
state
of
decomposition hence PM
lividity is not appreciated.
Foul smell is coming from
body. The skin and soft
tissue are missing at lower
part of frontal neck front and
sides of chest and abdomen,
lower part of right leg, distal
part of both the feet. Rest of
the skin of face available
part of front of neck, lower
part of thighs and legs are
discoloured brownish black
while available part of back
of
scalp
neck
chest
abdomen gluteal region
and upper part of front and
back of thighs are less
discolored. Marbeling is
present on both the lower
limbs specially on anterior
aspects. Skin is easily
peeled off at places, scalp,
hair easily peeled off
maggots of size 0.2 to 0.5
ems. crowling all over the
body. External genetelia
distended
due
to
decomposition. Chest and
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 555
GUJARAT AND ORS. [RANJAN GOGOi, J.]
(13) Appearance of dead
body- normal or swollen,
condition of eyes, condition
of tongue, face, type of
discharges from ears or
nostrils (if any).
abdominal
cavity
are
exposed, both sides of ribs
and vertebra/ column are
seen externally. Sternum,
both clavicles and costal
cartilages found missing.
Mass of tissue line attached
with neck contain trachea,
oesophagus part of both
lungs heart covered with peri
cardium and part of stomach.
Rest of abdominal organs
are missing. Both the upper
limbs are missing with
scapulae. Skin and soft
tissue in lower part of right leg
missing under line bones
exposed. Distal part of right
foot including toes missing,
metatarsals are exposed.
Distal part of left foot
including
toes
missing
metatarsals exposed the
missing tissues of the body
is attached with the changes
of post mortem phenomena.
Margins of missing tissues
are pale, irregular without
vital reactions and nibbling
due to animals appreciated.
Facial features are bloated
and distorted. Eyes open,
eye
balls
softened
decomposed and protruded.
Mouth is open tongue
protruded outside oral cavity.
A
B
c
D
E
F
G
H
556
SUPREME COURT REPORTS
[2012] 12 S.C.R,
A
B
(14) Condition of skin - blood
stain etc. If probability of
drowning then imprints of
biting by aquatic animal
C
(cutis Anserina) if any, record
be made regarding wrinkles
on skin.
No discharge noted from ear,
nose and mouth. Both the
ears are eaten up in pinna
region, margins irregular,
pale and without vital
reaction.
Nibbling due to animals
found in both pinna right
lower limbs, both feet chest
abdomen. Margins are pale.
irregular and without vital
reactions.
D
(3) Internal examination
E
F
(20) Chest:-
( c) Larynx, trachea and
thyroid bone
(21) ' ' ' . '
Small intestine & its contents
Large intestine & Its contents
G
Liver its wt. & gall bladder
Stomach & suprarenals
Spleen (with wt.)
Kidneys (with wt.)
Bladder
H
c) Trechia & larynx identified
food particles and mud found
present and appreciated in
trechea thyroid bone and
larynx identified and intact. No
injury appreciated in available
parts including soft tissue of n
Missing
Missing
Missing
Missing
Missing
Missing
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 557
GUJARAT AND ORS. [RANJAN GOGOi, J.]
Genitalia
No injury found.
Abhishek Shantilal Vaqhela:
"
(2) External examination
(12) Proof of dead body & it
signs - (during examination
of dead body its - hips, waist,
dead body & thighs or some
growth, blackening of some
parts after death if any) if
swelling of any part then
examination of fluid in it &
condition of the skin.
Body
is
in
stage
of
decomposition hence PM
lividity is not appreciated.
Foul smelling gas coming
from the body brown black
discoloration of skin found on
face, chest, abdomen, both
upper limbs and lower part of
both the thighs and both legs
while upper part of thighs
back of chest, gluteal region
is less discolouration. Skin is
early peeled off at places
scalp hair early peeled off.
Marbelling is present on
chest shoulder and thighs
more on anterior aspects.
Maggots of size 0.2 to 0.5
ems. Crawling all over the
body at places. Abdomen
and
external genetalia
distended
due
to
decomposition gases. Anal
canal rectum part of sigmoid
colon is prolapsed· out of
anus due to decompositions
toes of right foot except
greater toe are missing
degloving of skin of both
A
B
c
D
E
F
G
H
558
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A
(13) Appearance of dead
body- normal or swollen,
condition of eyes, condition
B
of tongue, face, type of
discharges from ears or
nostrils (if any).
c
(14) Condition of skin - blood
stain etc. If probability of
drowning then imprints of
D biting by aquatic animal
(cutis Anserina) if any, record
be made regarding wrinkles
on skin.
E ....... .
(17) Blunt or cut injuries on
external parts of body, .its
type, condition size and
direction be noted with
F proper care and probable
time of injury and its reason
be noted.
Petechial haemorrhage or
G collection seen if any, then
condition of muscles and
ligaments under the skin of
that area?
H
hands found present due to
decomposition.
Facial features are blotted
and distorted. Eyes open eye
ball soften decomposed and
protruded out from its sockets.
Mouth
is
semi-opened,
tongue protruded out from
oral cavity. White frothy fluid
is coming from nose and
mouth. Both the ears are
eaten in pinna region bv
animals.
Both ears in pinna region and
toes of right foot except
greater toe eaten by animals.
1. Both ears in pinna region
are missing. Margins are
irregular pale without vital
reactions nibbled by animals.
2. Second, third, fourth and
fifth toes of right foot are
missing meta torsafs bones
exposed, margins irregular
and pale, No, vital reactions
found. Present nibbling by
animals appreciated.
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 559
GUJARAT AND ORS. [RANJAN GOGOi, J.]
Notice:-
if
there
are
innumerable injuries which
can't be noted in given
space,
then
a signed
supplement be attached to it
with details
No, ante mortem injury A
qetected
over
the
available parts of the
body.
B
(3) Internal examination
(20) ....
(c} Larynx, trachea and
thyroid bone
c
c) No injury found in soft
tissue and muscles of
neck. Hyoid bone and
thyroid cartilage intact few
food particles and mud
D
appreciated in trechia
13. We have already referred to the series of
communications exchanged between the officers of the
investigating agency and the Department of Forensic Medicine,
E
BJ Medical College, Ahmedabad as well as the Deputy
Director of the State Forensic Laboratory in an earlier part of
this order. Such communications are in the form of queries
made by the investigating agency and the replies of either the
Department of Forensic Medicine of the BJ Medical College
F
or the authorities of the State Forensic Laboratory to such
queries. The relevant contents of the said correspondence
placed before us may be summarized below:
1.
Though there are tear marks over the clothes there
are no cut marks found on the bodies of the
G
deceased.
2.
Presence of diatoms in cases of death by drowning
may not always be found e.g. in case of dry
drowning. At times the drowning medium (water)
H
may not contain any diatoms.
A
B
c
D
560
SUPREME COURT REPORTS
(2012] 12 S.C.R.
3.
Food particles and mud were found in trachea of
both the deceased.
4.
Animal bites were present on the bodies of both
the deceased particularly in the region of the ears
and toes in the case of deceased Abhishek and
additionally in the feet, chest and abdomen of
deceased Dipesh.
5.
No shaving of scalp hairs was found in either case
and also no injuries over the neck to draw blood
were detected.
6.
The disappearance of organs from the body of the
deceased - Dipesh may have been due to wild
animals pulling or carrying the same away.
14. Before proceeding any further in the matter it will be
appropriate for us to notice the tenor of allegations mentioned
in the FIR dated 07.11.2009 filed in respect of the incident in
question. The aforesaid FIR was filed after more than one year
of the incident and after holding of a detailed inquiry/
IE investigation into the incident. What has been alleged in the FIR
is that on account of the delay on the part of the accused in
organising a prompt and effective search of the missing children
they could not be recovered alive, and in fact, even the dead
bodies of the children could not be traced out for several days.
F The specific stand taken in the FIR is that had a prompt search
been carried out, possibly, the children could have been found
alive or, at least, the dead bodies could have been recovered
earlier so as to enable an effective post-mortem of the bodies
to determine the precise cause of death. It is also alleged that
G the Ashram authorities had advised the parents of the children
to resort to various tantric practices to find out about the
whereabouts of the children instead of promptly approaching
the police. The failure of the said authorities to effectively man
the gates behind the ashram adjoining the river bed have also
H been highlighted in the FIR as another omission on the part of
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF. 561
GUJARAT AND ORS. [RANJAN GOGOi, J.]
the ashram authotities so as to give rise to the commission of A
the offence of culpable homicide.
15. Two other aspects of the matter also need to be dealt
with at this stage. In the opinion rendered by the Department
of Forensic Medicine BJ medical College, Ahmedabad with
B
regard to cause of death of the two children, as extracted above,
it is recorded that "presence of diatoms could not be detected".
Relevant literature has been laid before the court to show that:
"diatoms are among the well known water planktons ........... .
Every water body has its own diatom diversity ...... Diatoms are
C
commonly found in water bodies like ponds, lakes, canals and
rivers etc. but their concentration can be low or high in a
particular water body, depending upon the season ........ "
16. The following extract from the works/literature placed
before the court would also require a mention to understand the
D
significance of the absence of diatoms as mentioned in the
report of the Department of Forensic Medicine BJ Medical
College, Ahmedabad.
'When drowning takes place, diatoms enter into the
E
lung cavity of a person through the aspirated water and
this water exerts a pressure on Jung cavity and rupturing
of the Jung alveoli takes place. Through these entrances
diatoms can enter into heart, liver, kidney, brain and
bone marrow ............ Analysis of diatoms present in the
F
lungs, liver, spleen, blood and bone marrow has for many
years been undertaken as a confirmatory test in possible
drowning cases. However, the diatom test has been
controversial since numerous cases of false negative and
false positive results have been documented .......... "
17. The second significant fact which has to be noted is
the meaning of the expression "without vital reactions" as
appearing in different parts of the post mortem reports under
Col. 12,13,14 of part II -external examination. In the statement
G
H
562
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A of the doctor who had conducted the post-mortem on the dead
bodies of the children (as testified before the commission of
enquiry appointed by the State Government), it has been
explained that "if a person is living and is injured then whatever
injury is caused, the process causing the injury is called vital
B reaction." In fact in a published medical work placed before the
Court by the learned counsel for the respondent, Shri Naphde,
it is mentioned that when a wound is inflicted on a living
organism a series of events is triggered called vital reaction.
18. Section 299 IPC defines culpable homicide as causing
C of death by doing an act with the intention of causing of death
or with the intention of causing such bodily injury as is likely to
cause death or with the knowledge that by such act death is
likely to be caused. Under Section 300 IPC all acts of culpable
homicide amount to murder except what is specifically covered
D by the exceptions to the said Section 300. Section 304 of
Indian Penal Code provides for punishment for the offence of
culpable homicide not amounting to murder.
19. Commission of the offence of culpable homicide would
E require some positive act on the part of the accused as
distinguished from silence, inaction or a mere lapse. Allegations
of not carrying out a prompt search of the missing children; of
delay in the lodging of formal complaint with the police and
failure to take adequate measures to guard the access from
F the ashram to the river, which are the principal allegations made
in the FIR, cannot make out a case of culpable homicide not
amounting to murder punishable under Section 304 IPC. To
attract the ingredients of the said offence something more
positive than a mere omission, lapse or negligence on the part
of the named accused will have to be present. Such statements
G are conspicuously absent in the FIR filed in the present case.
H
A reading of the relevant part of the opinion of the Forensic
Medicine Department of the BJ Medical College Ahmedabad
would go to show that possibility of death of the children by
SHANTIBHAI J. VAGHELA AND ANR. v. STATE OF 563
GUJARAT AND ORS. [RANJAN GOGOi, J.]
drowning cannot be ruled out. Expert opinion available on
A
record indicates that mere absence of diatom will not exclude
the aforesaid possibility. The relevant part of the post mortem
report, as extracted, indicates presence of mud in the trachea
of the children which fact also point to the possibility of death
by drowning. The absence of any injuries on the body of the
B
deceased; the attack on the bodies by wild animals and the
possibility of the taking away of the missing organs of the
deceased Dipesh by wild animals are all mentioned in the postmortem report. The said facts cannot be excluded or ignored
while construing the prima facie liability of the accused named c
in the FIR. The absence of any positive material to show the
practice of black magic in connection with the incident is
another significant fact that has to be taken note of. Taking into
account all the aforesaid facts)! cannot be said that the High
Court, in the present case, had committed any error in
D
exercising its jurisdiction to interdict the investigation of the
offence under section 304 IPC against the accused named in
the FIR. Such power, though must be exercised sparingly, has
to be invoked if the facts of any given case so demand. This is
precisely what the High Court had done in the present case
without departing from any of the well settled principles of law
E
emanating from the long line of decisions of this court noticed
in Asmathunnisa Vs. State of Andhra Pradesh rep. by the
Public Prosecutor, High Court of Andhra Pradesh,
Hyderabad1•
20. Our above view, naturally, has to be understood to be
confined to the present stage of the proceedings and without,
in any way impairing the powers of the Trial Court under Section
216 or Section 323 of the Code of Criminal Procedure. In fact
F
we reiterate as held by this court in Central Bureau of G
Investigation & Ors. Vs.Keshub Mahindra & Ors. 2 that the
powers under the aforesaid provisions of the Code will always
be available for exercise if subsequent facts would justify resort
1.
c2011) 11 sec 259.
2.
c2011) s sec 21s.
H
564
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A to either of the provisions. We also deem it appropriate to add
that though several decisions of this court had been placed
before us to demonstrate that it is open to this Court to direct
further investigation by the CBI even after the State police may
have filed the charge sheet upon completion of its investigation,
B we do not consider it necessary to go into any of the said
decisions in view of our conclusions as recorded above. The
mere reiteration of the availability of the judicial power to direct
further investigations even after filing of the charge sheet as
held in Narmada Bai Vs. State of Gujarat & Ors. 3 would suffice
c for the present.
21. Consequently, and in the light of the foregoing
discussions we dismiss the appeals subject to our
observations as above.
D B.B.B.
Appeals dismissed.
3.
c2011i s sec 79.