Gujarat High Court
Prakashkumar Jayantilal Gandhi vs State Of Gujarat on 8 August, 1990
Equivalent citations: 1992CRILJ462, (1991)1GLR142
JUDGMENT S.D. Dave, J.
1. In this Criminal Appeal, the appellant-accused Prakashkumar Gandhi challenges the judgment of conviction and sentence pronounced by the learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 6 of 1984 dated 8-10-84 convicting the appellant-accused for the offences punishable Under Sections 302 & 201 of the Indian Penal Code and sentencing him to the imprisonment for life for the offence punishable Under Section 302 of the Indian Penal Code and to R.I. for 5 years and to fine of Rs. 1000/- in default further R.I. for six months for the offence punishable Under Section 201 of the Penal Code.
2. The appellant-accused Prakashkumar Gandhi stood charged for the alleged commission of the offences punishable Under Section 302 read with Section 201 of the Penal Code along with his younger brother, parents and the brother-in-law on the accusation that during the night between 15-7-83 and 16-7-83 they had administered potassium cyanide to the deceased Pravinaben who happened to be the wife of the present appellant-accused and murdered her. Alternatively, the accused persons stood charged for the alleged commission of the offence punishable Under Section 302 read with Sections 109 and 114 of the Penal Code. The accused persons were also facing the charge for the alleged commission of the offence punishable Under Section 201 of the Penal Code on the accusation that they had caused the evidence of murder to disappear.
3. The case of the prosecution may be noticed in brief thus :--
The appellant-accused Prakashkumar Gandhi happened to be the husband of the deceased Pravinaben. The accused persons Nos. 2, 3, 4 & 5 are respectively the younger brother, parents and the brother-in-law of the accused No. 1. The accused No. 1 Prakashkumar used to reside at the house No. 2639 situated at Khadia locality within the city of Ahmedabad along with his wife Pravinaben. The marriage of the appellant-accused with the deceased Pravinaben had taken place some years back, but it appears that their relations were not cordial and ultimately Pravinaben had resumed her study at Nardipur at North Gujarat. The appellant-accused had filed the Hindu Marriage petition for a decree for Restitution of Conjugal Rights. The abovesaid application was challenged by the other side namely the deceased Pravinaben on the ground that as a matter of fact, the husband wants to have a divorce from her and that a false Hindu Marriage petition for the restitution of conjugal rights has been filed against her. It appears that later on above said matter was amicably settled and the deceased Pravinaben had reverted to her matrimonial house.
4. The case of the prosecution is that on 15-7-83 some Sale Tax Officers had visited the house of the accused persons and at about 10-00 p.m. the deceased Pravinaben was seen alive. But the case of the prosecution is that during the night between 15-7-83 and 16-7-83 the accused persons had firstly tried to smother the deceased and later on potassium cyanide was administered to her. During the early morning hours three private practitioners were called. They had recognised that there was something unnatural in the death of the deceased and, therefore, the Doctors had agreed that the post mortem examination was a must. Therefore, a note was given to the father of the appellant-accused addressed to the Civil Hospital, Ahmedabad saying that the post mortem examination on the dead body of the deceased should be carried out. Accordingly an autopsy was carried out and the report of the same was obtained. The viseras were preserved and the report of the Forensic Expert was also later on obtained. The visera report had shown the presence of potassium cyanide and ultimately the FIR was lodged by the Investigating Officer. During the course of the investigation the panchnama of the "Padika stained with potassium cyanide was recovered from the Bath-room. The five accused persons were charged for the alleged commission of the above said offences. Their case was committed to the Court of the learned Additional City Sessions Judge, Ahmedabad. Ultimately, the charge was framed against the accused persons on 27th February 1984. The accused persons had pleased not guilty to the charge and had claimed to be tried before the above said Court. Later on the prosecution evidence was recorded and on relying upon the same, the learned Trial Judge had reached to the conclusion that the offences punishable under Sections 302 and 201 of the Penal Code were duly established against the appellant-accused. The learned trial Judge, therefore, had awarded the imprisonment for life to the appellant-accused for the main offence punishable Under Section 302 of the Penal Code. So far as the offence punishable Under Section 201 of the Penal Code is concerned, the appellant-accused was awarded the R.I. for 5 years and he was also sentenced to a fine of Rs. 1000/ - in default he was ordered to undergo the R.I. for a further period of six months. Being aggrieved and dissatisfied with the above said judgment of conviction and sentence dated 8-12-84 that the present appeal has been filed by the appellant-accused who was the original accused No. 1 before the trial Court.
5. Mr. K. J. Shethna the learned Advocate appears on behalf of the appellant-accused while the respondent-State has been represented by the learned A. P. P. Mr. Divetia.
6. Mr. Shethna the learned Advocate who appears on behalf of the appellant-accused has contended that the learned trial Judge has committed a grave error in recording the judgment of conviction and sentence. Mr. Shethna has urged that the evidence would go to show that the appellant-accused could not have been convicted for the offence punishable Under Sections 302 & 201 of the Indian Penal Code. Mr. Shethna has urged that the conduct of the appellant-accused would go to show that just after the incident three Doctors were summoned and the relatives of the deceased were also immediately intimated. Mr. Shethna has also tried to point out that there was no motive for the appellant accused to commit the murder of his wife because though there were certain disputes between the parties there was amicable settlement and ultimately the deceased had reverted to the matrimonial house. Mr. Shethna has also further contended that the homicidal death of the deceased is not proved and that it is also not established that the accused had in his possession the potassium cyanide. Mr. Shethna has also urged that in the same way there is absolutely no evidence to warrant a conclusion that the appellant had any opportunity to obtain potassium cyanide which is not easily available in the market. Mr. Shethna has also contended that the members of the family were residing jointly in the house and, therefore, the appellant-accused had no opportunity or the occasion to administer the lethal dose of the potassium cyanide to the deceased. Mr. Shethna has, therefore, urged that the present appeal deserves to be allowed and the judgment of conviction and sentence as pronounced by the learned trial Judge requires to be set aside.
7. But Mr. Divetia the learned A.P.P. who appears on behalf of the respondent-State has contended that the learned Trial Judge was perfectly justified in his judgment of conviction and sentence because the evidence on record would go to show that the appellant-accused had a strong motive to eliminate his wife with whom he had some disputes in the past. Mr. Divetia has also further contended that the evidence on record would go to show that the death of the deceased Pravinaben was definitely of a homicidal nature because the Medical Expert like Dr. Deshmukh had noticed some injuries on the person of the deceased. Mr. Divetia has urged that when Dr. Deshmukh had noticed abovesaid external injuries on the person of the deceased and when moreover the visera report shows that potassium cyanide was found to be present a strong case of homicidal death is made out. Mr. Divetia has also urged that the accused and the deceased were in the company of each other during the fateful night and that the appellant-accused had every opportunity to administer potassium cyanide to his wife. Mr. Divetia has, therefore, urged that the learned trial Judge was perfectly justified in coming to the conelusion that the appellant-accused was the author of the crime. Raising the abovesaid contentions Mr. Divetia has urged that the present appeal deserves to be dismissed.
8. At the outset it requires to be appreciated that there is no eye-witness to the incident and therefore, the entire case of the prosecution rests upon certain circumstances. The learned trial Judge was also conscious of the position emerging from the Supreme Court Decision in the case of Ramgopal v. State of Maharashtra 1972 Cri LJ 473 : (AIR 1972 SC 656). Because of this position, the learned trial Judge had considered certain circumstances and ultimately he had reached to the conclusion that the necessary circumstances have been established which would go to show that none else but the Appellant Accused was the author of the crime.
9. Looking to the case of the prosecution it appears that the prosecution wants to establish the following circumstances against the Appellant-Accused:
1. That the Accused Prakashkumar Gandhi and his wife deceased Pravina Gandhi were staying together as husband and wife at the house No. 2639 situated at Dhobi Pole, Khadia Ahmedabad at the time of the incident.
2. That the relations between the Accused and the deceased wife were far from cordial and that the deceased was being subjected to the mental and physical cruelty.
3. That the accused had filed Hindu Marriage Petition No. 166 of 1982 against the deceased for the Restitution of Conjugal Rights as at that time the deceased was staying at Seva Mandir Nardipur Taluka Kalol District Mahesana.
4. That the Accused in fact wanted to obtain a decree of divorce against the deceased.
5. That the deceased had died a Homicidal death after unsuccessful smothering and administering of potassium cyanide during the night of 17-5-83.
6. That the Accused had put forth a false reason of death i.e. the death by a fall in the Bathroom at the time of brushing the teeth following a brain haemorrhage on 16-7-83 during the morning hours.
7. That a small pack i.e. a "Padika" of Potassium Cyanide was recovered from the Bath Room by the Investigating Agency in the presence of the Panchas.
8. That the Accused was working at Cadila Laboratory and had an opportunity to obtain a small but lethal dose of Potassium Cyanide from any chemist or druggist.
10. Having enlisted the circumstances sought to be established by the prosecution, we should proceed further to examine as to whether the prosecution has been able to establish them. The first circumstance which the prosecution wanted to establish is that the accused Prakashkumar Gandhi and his wife deceased Pravinaben Gandhi were staying together as the husband and wife at house No. 2639 situated at Khadia locality within the city of Ahmedabad at the time of the incident. This circumstance has not been challenged by the defence. But it appears that the prosecution has been able to establish this part of their case with the cogent evidence on record. Firstly there is sworn testimony of Jyotindra Purohit P.W. No. 1 at Ex. 15. His evidence requires to be read along with the evidence of one Kunjbihari Rao at Ex. 26. Jyotindra Purohit has stated in his evidence at Ex. 15 that at the relevant time he was working under the Sales Tax Department and on 15-7-83 he had received the intimation that a matador vehicle which was carrying certain dry fruits belonging to the Accused No. 4 was intercepted by the Octroi Department of the Ahmedabad Municipal Corporation and therefore he and his companion had gone to the house of the accused No. 4 Jayantilal Gandhi. His say further is that Atulkumar the accused No. 2 was present there and ultimately he was able to recover the amount of Rs. 3806/- as the sales tax for the abovesaid dry fruits which were brought in the city. Jyotindra Purohit has further stated that Pravinaben had offered him a glass of water. He has stated that he was not knowing Pravinaben but Atulkumar or Prakashkumar had asked Pravinaben to bring a glass of water and therefore, she had brought water and therefore, he is under the impression that -the abovesaid person who had brought the glass of water must be Pravinaben. He has further stated that they has waited at the house up to 10-00 p.m.
11. Kunjbihari Rao whose sworn testimony appears at Ex. 26 has also stated that he had gone to the house belonging to the father of the present appellant-accused and at that time they were served with a glass of water and the ice-cream. His say further is that Pravinaben had offered him the abovesaid articles. Therefore, from this evidence tendered by Kunjbihari it becomes clear that during the night of 15-7-83 the deceased was staying at the above said house in the company of the appellant-accused. Moreover, the evidence tendered by John Mecwas at Ex. 16 would also go to show that the telephonic message of Dr. Dalai was to the effect that Pravinaben has expired at the locality known as Dhobi's Pole, Ratnaji Pande has also stated in his evidence at Ex. 18 that Dr. Gaurang Dalai has given a telephonic message that Pravinaben the wife of the appellant-accused was found to have been dead in the house belonging to the accused persons. Jalamsinh Solanki has also stated in his evidence at Ex. 20 that he has gone to the house where the deceased and the appellant-accused used to reside and had removed the dead body of the deceased Pravinaben for the post-mortem examination to the Civil Hospital. The evidence of Dr. Dalai at Ex. 29 and Dr. Kirit Modi at Ex. 32 also go to show that they had occasion to examine the deceased in the house belonging to the father of the appellant-accused where the appellant-accused and the deceased used to stay together. On this point, there is also the evidence of Bhartiben Khamar P.W. No. 14 at Ex.41. The abovesaid witness happens to be the real sister of the deceased. She has stated that after hearing the message regarding the death of the deceased she had rushed to the residential house being occupied by the appellant-accused.
12. Therefore, it becomes clear that this circumstance which is not challenged by the other side in duly established. The abovesaid evidence goes to show positively that the deceased and her husband the appellant-accused before this Court were staying together at the house No. 2639 situated at Dhobi's Pole in Khadia locality within the city of Ahmedabad.
13. The second circumstance which the prosecution wants to establish is that the relations between the appellant-accused and the deceased were far from cordial and the deceased was being subjected to mental and physical cruelty. With a view to establish this circumstance, the prosecution has placed reliance upon the oral evidence tendered by Sakalchand Patel P. W. No. 6 at Ex. 22 and of Bhartiben Khamar P.W. No. 14 at Ex.41. The reliance is also sought to be placed upon the certain documents. The oral testimony tendered by Dr. Deshmukh and the postmortem report prepared by him are also pressed in service with a view to show that there were certain injuries on the person of the deceased which would further go to show that she was being subjected to physical cruelty.
14. Sakalchand Patel P.W. No. 6 has been examined at Ex. 22. He has stated that he used to know the deceased, her father and the accused persons. According to him the marriage between the appellant-accused and the deceased was solemnised before about 6 to 7 years and that after about 3 years of the marriage Pravinaben had met him at his house at Kalol and has informed him that she and her husband Prakashkumar were not on good terms. She had also informed him that she was subjected to violence and the physical cruelty. His say is that thereafter he had met Govindbhai who used to know the father of the accused and had expressed a desire that now the husband and wife should separate. It is his say further that again Pravinaben had met him and at that time she has told him that she was got liked by her husband. It is his say further that thereafter they had tried to bring about a formula for amicable settlement and that certain amount was to be deposited in the name of Pravinaben but ultimately there was no amicable settlement and that the parties had desired that the matter should be left to the discretion of the Court. It therefore, becomes clear that Sakalchand Patel clearly says that the relation between the parties were not cordial.
15. Bhartiben Khamar P.W. No. 14 who has been examined at Ex. 41 has also stated that the deceased who happened to her real sister was not happy at the matrimonial house. Her say is that the deceased Pravinaben had informed her that she was trying to satisfy her husband's demands for sex but that her husband was not being satisfied and that therefore, she was being subjected to the mental and physical cruelty. It is indeed true that in some respect Bhartiben stands contradicted with her statement before the police. But from her evidence it can be deduced as a whole that according to her knowledge, belief and information the deceased was not happy with the acused and that she was being subjected to mental and physical cruelty.
16. There is on record, one letter at mark 'E' which has not been exhibited by the learned trial Judge. This letter it appears has not been exhibited because it happens to be a xerox of the original. When the abovesaid document has not been exhibited it stands outside of our consideration and we do not propose to have a look at the same. But there is one note book at Ex. 43 in which the entire situation after the marriage has been described by the deceased. It has been urged by Mr. Shethna the learned Advocate who appears on behalf of the appellant accused that the abovesaid note-book ought not to have been exhibited. Mr. Shethna has pointed out that the abovesaid note-book is neither relevant nor admissible in evidence. Any how, the abovesaid document has been exhibited in the evidence at the trial stage. But even if we do not press the abovesaid note-book in service at Ex. 43 on the basis of the contention raised by Mr. Shethna, there is the evidence of the abovesaid two witnesses which would go to show that the relation between the parties were not only not cordial but were strained.
17. Moreover, one more circumstance which requires to be taken into consideration is the fact that Dr. Deshmukh has noticed certain external injuries on the person of the deceased. We will revert to the abovesaid injuries duly described by Dr. Deshmukh hereinafter within a short. But at this juncture, it requires to be appreciated that according to Dr. Deshmukh there were 7 bruises on the upper part of the chest. There were also 5 injuries which have been described by Dr. Deshmukh as "Futher injuries". It therefore, becomes clear that when Dr. Deshmukh had carried out the post-mortem examination he had noticed 7 bruises and 5 other injuries. It is true that Dr. Deshmukh is not consistent regarding the age of the above said injuries because at one juncture he has stated that the abovesaid injuries were ante-mortem in nature and that it could have been caused within 24 hours to about 14 days. He has also stated that the bruise with abrasion present on the left arm would be of 2 to 4 days duration. Looking to the abovesaid evidence tendered by Dr. Deshmukh, it appears that there were certain injuries on the person of the deceased which could have been causes quite earlier to the incident. This aspect would go to show that the deceased Pravinaben was being subjected to physical cruelty or else the above said injuries could not have been found on the dead body of the deceased. Therefore, the evidence of Sakalchand Patel at Ex. 22 and Bhartiben Khamar at Ex.41 and the above-said evidence tendered by Dr. Deshmukh at Ex. 34, would go to show that the relation between the appellant-accused and the deceased were far from cordial and that the deceased was being subjected to mental and physical cruelty by the appellant-accused.
18. The 3rd & 4th circumstance which the prosecution want to establish is that the appellant-accused has filed the Hindu Marriage Petition for the Restitution of Conjugal Rights. But the case of the prosecution is that the abovesaid petition for the Restitution of Conjugal Rights was filed only with an ulterior motive of obtaining a decree of divorce. The H.M.P. filed by the appellant accused came to be registered as H.M.P. No. 166 of 1982. A copy of the petition is available at Ex. 47 on the record. The Written Statement or the Reply filed by the deceased is available at Ex. 55. Looking to these two documents it is conclusively established that the appellant-accused had filed the Hindu Marriage Petition against the deceased for the Restitution of the Conjugal Rights. But it is the case of the prosecution that as a matter of fact, the abovesaid petition was filed by the appellant-accused with an ulterior motive of obtaining a decree of divorce against the deceased. We see no justification or reason to accept the above-said contention as raised by the prosecution. The documents which are on record would go to show that there were certain disputes and that the deceased had reverted back to the education Institution at Nardipur where she had resumed her studies. It is because of this position that the appellant-accused had filed the H.M.P. No. 166 of 1982 for the purpose of getting a decree of Rstitution of Conjugal Rights. We are not prepared to accept the case of the prosecution that the real motive or the purpose behind the filing of the H.M.P. for the appellant accused was to obtain a decree of divorce. In view of this position, we accept that the third circumstance which the prosecution wanted to establish is duly proved. We are not in agreement with the proposition that the 4th circumstance is also established which is to the effect that by way of filing the H.M.P. for the Restitution of Conjugal Rights the appellant-accused wanted to have a decree of divorce against the deceased.
19. The next circumstance which the prosecution wanted to establish is that the deceased had died a homicidal death by (i) unsuccessful attempt of smothering and (ii) by administration of potassium cyanide during the night of 15-7-83. The sixth circumstance which the prosecution wants to establish is that the accused had putforward a false pretex of death namely the death by fall in the bathroom at the time of brushing the teeth following the brain haemorrhage during the morning hours. These two circumstances which the prosecution want to establish are interconnected and therefore, we propose to examine the abovesaid two circumstances together in light of the evidence available on the record.
20. As noticed above, during the morning hours of 16-7-83 Dr. Dalai a Medical Practitioner was summoned to the house of the appellant-accused Dr. Dalai who has been examined as P.W. No. 11 at Ex. 29 has stated that on 16-7-83 at 6-00 to 6-10 a.m. one person had approached him at his house and had informed him that one lady had fallen down in the bathroom while brushing the teeth and she is unconscious and therefore, his services are immediately required. The say of Dalai further is that he had advised the abovesaid person to call the family physician but he was told that the family physician has not come even though summoned on telephone and therefore, he had gone to the house situated at Dhobi's Pole and had seen that one lady was made to lie down on the floor on a matress. The say of Dr. Dalai is that when he had reached there he had seen that one another Medical Practitioner Dr. Modi was also present and he was giving cardiac massage to the deceased. Dr. Dalai has stated that he was informed that the lady had fallen down in the bathroom but he had not seen any such external injuries and he was also of the opinion that there was no sign of the recent brushing of the teeth. His say is that therefore, he was of the opinion that the real reason of the cause of death was not forthcoming and therefore, he had advised be carried out the post-mortem examination. The say of Dr. Dalai is that meanwhile Dr. Mallimath had also come there and the three of them had a conference in the nearby house and ultimately it was resolved that the post-mortem examination should be advised and therefore a note for the post-mortem examination was given to the father of the appellant-accused. It is also his say that he had inquired from the mother of the appellant-accused who figured as the original accused No. 3 before the trial Court as to whether in past on any occasion the deceased had fallen down in the same fashion but he was informed that no such incident had taken place in the past.
21. During the cross-examination Dr. Dalai has stated that when he had gone to the house of the patient Dr. Modi was busy giving cardiac massage. He had also further stated that ordinarily the cardiac massage would be given when the Doctor would be under the impression or the belief that the patient is still alive. Any how, he has stated that the patient was pronounced to be dead by Dr. Modi and therefore, he himself had examined the patient and had come to the conclusion that the patient namely the deceased Pravinaben is already dead.
22. The next evidence in the same line is of Dr. Kirit Modi P.W. No. 12 at Ex. 32. He has stated that one person had approached him at his house between 6-00 to 6-30 a.m. on 16-7-83 and had requested him for a visit and had informed him that one lady had fallen down and had lost consciousness when she was brushing the teeth in the bathroom. His say further is that he had accompanied the abovesaid person and had gone to the house situated at Dhobi's Pole. The name of the patient according to Dr. Modi was Pravinaben. He had examined her and noticed that she was already dead. Any how his say is that thereafter he had given cardia massage to the deceased but no response was noticed by him. The say of Dr. Modi is that meanwhile Dr. Dalai had reached there and he had requested him to examine the patient. Dr. Dalai had also examined the patient and he had expressed the same opinion namely that the deceased had already expired. The say of Dr. Modi is that meanwhile Dr. Hallinath had reached there. After a conference they had come to the conclusion that the death of the deceased was not natural and therefore, the dead body should be forwarded for the post-mortem examination and accordingly a note was given by Dr. Dalai.
23. Dr. Modi has stated that when the cardiac massage was given to the deceased, her garments were not removed. He has expressed the opinion that by giving the cardiac massage in the said fashion, there would not be any external injuries on the person of the deceased. It is also his say during the cross-examination that he had given the cardiac message for about 5 minutes in the hope of reviving the heart. Any how, he has stated that there was no response to the cardiac massage.
24. Mr. Shethna, the learned Advocate who appears on behalf of the appellant-accused has urged that immediately after his arrival Dr. Kirit Modi had preferred to give cardiac massage to the deceased because according to him the deceased must have died only before some time of his arrival in the house. Mr. Shethna has also in alternative contended that Mr. Modi must be under the impression that the deceased was alive at. that time. Mr. Shethna has further pointed out that the evidence of Dr. Deshmukh P.W. No. 13 at Ex. 34 is to the effect that deceased must have died before about 12 to 24 hours of the post-mortem examination. The postmortem examination was commenced at 11-15 a.m. on the next day. It would therefore, mean that the deceased must have died at least before about 12 hours. Basing his argument upon this evidence Mr. Shethna has contended that if the deceased had died at least before about 12 hours according to the expert opinion Dr. Dalai and Dr. Modi would not have thought it proper to give cardiac massage. The learned Trial Judge was also conscious of this position. With a view to explain this position, the learned trial Judge has observed that possibly Dr. Dalai and Dr. Modi must have become panicky after saying the unnatural death of the deceased. We are not prepared to accept the abovesaid explanation tendered by the learned trial Judge. We do not feel that either Dr. Dalai or Dr. Modi had become panicky and that they would have started to give cardiac massage without properly understanding the situation. We feel that Dr. Dalai and Dr. Modi were called during the early morning hours. The information given to both the Doctors was to the effect that the deceased had fallen down in the bathroom while brushing her teeth. Naturally placing reliance upon the abovesaid information supplied to them they must have thought it fit to try their level best to see that the deceased who had died in the recent past may respond to the cardiac massage. Therefore, merely because Dr. Modi and Dr. Dalai had preferred to give cardiac massage we are not inclined to accept that the deceased had died only some minutes before Dr. Dalai and Dr. Modi were summoned to the house where the appellant-accused used to reside in the company of the deceased.
25. Mr. Shethna has urged that neither Dr. Dalai nor Dr. Modi had noticed any external injuries on the person of the deceased. But it requires to be appreciated that the injuries on the chest would be hidden behind the garments which were on the person of the deceased. Dr. Dalai and Dr. Modi would not have been able to see any such injuries which would be behind the garments on the person of the deceased. Merely because Dr. Dalai and Dr. Modi had not noticed any such external injuries, we are not prepared to accept the contentions raised by Mr. Shethna that there were absolutely no injuries on the person of the deceased. We see no reason to disbelieve the say of Dr. Deshmukh at Ex. 34 which is duly supported and corroborated by the post-mortem report at Ex. 35. Upon a joint reading of the oral testimony of Dr. Deshmukh at Ex. 34 and the post-mortem report at Ex. 35 we are satisfied that there were abovesaid injuries on the person of the deceased.
26. As noticed above, we are not prepared to accept the abovesaid contention as raised by Mr. Shethna. After having decided as above, we would like to have a look at the sworn testimony of Dr. Deshmukh at Ex. 34 and the Post-mortem Report at Ex. 35 in detail. Dr. Deshmukh has stated that on 16-7-83 at about 9-30 a.m. he had received the dead body of the deceased Pravinaben Gandhi for the post-mortem examination with Yadi from the Astodia Police Station. According to him he had commenced the post-mortem examination at 11-15 a.m. and had completed the same at about 12-30 p.m. on the same day. He has stated that the dead body was of a female aged about 27 years. She was well nourished and well built. Rigor Mortis was present all over the body. Dr. clotted blood was seen deposited at lips nearer to their dentine respect and also over the drums teeth of middle front of mouth. Dr. Deshmukh has stated that he had noticed the following external injuries on the dead body which have been noticed by him in column No. 17 of the Post Mortem Report at Ex. 35.
1. 7 Bruises on the upper part of the chest. They were elongated and eleptical in shape. Their colour was dark in the centre and feding margins and ends. Their colour was verying from reddish blue to fading yellow. 7 bruises were as under:--
1. Bruise 6 cms. above right nipple down words and laterally 3 cms. x 1.2 cms colour was reddish blue.
2. Bruise over right third coastal carcilage and 1 cm. from midline fading yellow size 3 cm x 1 c.m.
3. Bruise on the same level but just left to midline No. 2 and 3 were horizontal.
4. Bruise situated 3 cms. medial to left nipple fading green in colour, horrizontal in size 2.5 x 1 c.m.
5. Bruise situated 4 cm. above to No. 4 downward and laterally. Colour was fading yellow 4 x 1 c.m.
6. Bruise situated 4 cms. above and lateral to the same (No. 5) vertical 2 x 1 c.m. size, colour was green.
7. Bruise 6 c.m. above and lateral in left nipple upwards and medially, reddish blue in colour darker at lateral part.
27. Dr. Dalai has further stated that there were also "Further Injuries" which were as under:--
1. Slight swelling and bruising was present at the nostrils margins and base of the septum, red in colour.
2. Bruise cum abrasion present on the anteror aspect of the lower half of left arm directing downwords and medially Size 8 x 1.5 c.m. It was broader at upper end. Abrasion was extending as an interrupted line over the bruised area-size 7 cm. x 0.5 cm. colour bruise was blue.
3. Abrasion on the under surface of chin 1 c.m. behind and left to the symphysis mentil size 20 c.m. x 0.2 c.m. directing downwards and medially. Dry clotted blood was seen on it.
4. Lacerations of the upper lip against the cusps of upper central incisors and right lateral incisors. Size from right to left 0.2 x 02 c.m. 0.3 x 0.5 and 0.3 x .3 c.m. Lip was ecchymosed in surrounding area. Size 1 c.m. x 2 c.m.
5. Lacerations of lower lip against the cusps of lower incisors and right canina size from right to left 0.3 x 3 c.m., 0.2 x 0.2 c.m. and 0.2 x 0.3 c.m. lip was ecchymosed in surrounding areas size 1 x 2.2 c.m. slight swelling was present in the injured area -- little clots of blood were present.
Dr. Deshmukh has stated that the above-said injuries were antimortem in nature and in his opinion the death was within 24 hours before the commencement of the postmortem examination. Dr. Deshmukh has further testified that on going through the report of the Forensic Science Laboratory regarding the examination of visera the death was due to asphyia which was due to the poison detected i.e. Potassium Cyanide in the blood and visera Dr. Deshmukh has also stated that the external injuries stated in column No. 17 were suggestive of assault caused by hard and blunt object including the hands of the assailant. He has also expressed a further opinion that the abovesaid injuries were not possible either by a fall or by self-infliction. It is also the say of this witness that the external injuries noticed in column No. 17 - must have been caused prior to the administering the poison namely Potassium Cyanide. He has further stated that the age of the injuries would be from 24 hours to 1 to 14 days. The bruise with the abrasion on the left arm was of the duration of 2 to 4 days. The abrasion was covered with the dry clotted blood.
28. Therefore, the abovesaid evidence tendered by Dr. Deshmukh at Ex. 34 would go to show that he had noticed the abovesaid external injuries on the dead body of the deceased at the time of carrying out the autopsy. Moreover, though some injuries according to him was of the duration of 1 to 14 days the abrasion present on the chin which was covered with dry clotted blood must be of recent origin. Moreover, he has further stated that the external injuries No. 4 to 5 which are stated in the colums of Further Injuries above must have been caused. Within five to ten minutes of the death. The external injury No. 1 was also possible within 5 to 10 minutes prior to the death. Dr. Deshmukh has further expressed the opinion that the injuries on the chest were suggestive of teeth bite and/or could have been caused by pinching the skin after tightly holding a fold of it in between the fingers. He has also stated that the injuries at lips can occur if some other person tries to open the mouth by forcibly holding and retracting them. According to this witness, this reason is in addition to suggestive of the cause of smothering. Therefore, the above said evidence tendered by Dr. Deshmukh at Ex. 34 and the post-mortem report at Ex. 35 would go to show that there were the abovesaid injuries on the person of the deceased noticed at the time of carrying out of the post-mortem examination. The above injuries were undoubtedly "Ante Mortem in nature.
29. In our view, the injuries on the person of the deceased noticed by the Expert Dr. Deshmukh whose sworn testimony appears at Ex. 34 duly supported and corroborated by the post-mortem report at Ex. 35 would definitely go against the appellant-accused and would be a strong circumstance in favour of the prosecution. The presence of the above-said injuries would be a point to show that the incident one would not be a case of suicidal poisoning as suggested by the defence. On the contrary, in our considered view the above-said injuries on the person of the deceased would definitely go to show that she was subjected to the violence at the time of the incident. If the instant one were to be a case of suicidal poisoning the abovesaid injuries would not have been on the person of the deceased. It appears therefore, that the injuries were caused to the deceased and the lethal dose of Potassium Cyanide was administered by the appellant-accused as has been believed by the learned Trial Judge.
30. Mr. Shethna has placed heavy reliance upon certain statements made by Dr. Deshmukh during the cross-examination. Dr. Deshmukh has stated that he cannot say as to whether potassium cyanide is rarely used in homicide. He has further stated that he cannot say that there is normally a presumption in case of potassium cyanide poisoning in favour of suicide. Dr. Deshmukh had also stated that it is true that it cannot be administered forcibly to an unwilling person. Any how, it would be possible to administer it on some pretex Dr. Deshmukh has also stated that it is not true that the smell of potassium cyanide is such that if is brought nearer to the adult person he or she will repel it. Dr. Deshmukh has also stated that "Potassium Cyanide" if taken orally in powder form it is bound to corrode the inner lining of the mouth because it depends upon the concentration of the said liquid. Dr. Deshmukh has stated that he did not find any corrosion in the mouth tongue and pallet that is the whole of oral cavity during the post-mortem examination. Dr. Deshmukh has also stated that he had opened the oesephagus during the postmortem examination, but he had not found any corrosive marks in the same.
31. Mr. Shethna the learned Advocate who appears on behalf of the appellant-accused has urged that there was no corrosion in the oral cavity or the oesophagus as noticed by Dr. Deshmukh and therefore, it would be a strong circumstance against the prosecution. But it requires to be appreciated that the visera report clearly show that the death was due to potassium Cyanide poisoning. The visera had clearly shown the presence of the abovesaid poison. It therefore, cannot be doubted or seriously questioned as to whether the deceased had died because of the poisoning of potassium cyanide. Any how, the fact remains that there was no corrosion in the oral cavity or the oesophagus. The possible reason is that the chemical must have been administered in the form of a mixture. When potassium cyanide is being administered in the form of liquid it would be dilated in the water and there would not be any corrosive action whatsoever. If the liquid is not in a concentrated form it would not cause corrosive marks in the oral cavity or the Oesephagus. Merely because there was no corrosive injuries the case of the prosecution cannot be discarded that the death was due to the administration of potassium cyanide because as noticed above the report of Forensic Expert goes to show very clearly that the visera had shown the presence of the above said chemical.
32. We are fortified in our abovesaid opinion by the Report of the Forensic Science Laboratory at Ex. 33, which goes to show very clearly that the sample bottle Nos. 1, 2 and 3 were containing the potassium cyanide The first two bottles were containing visera as weighing about 400 gramms and 350 gramms respectively. The third bottle was containing about 100 ml. of blood. The report as noticed above goes to show very clearly that the visera bottles and the blood bottles were containing Potassium Cyanide. In view of this position even if there are no corrosive injuries in the oral cavity and the oesophagus we are of the opinion that the death was due to the above-said chemical namely Potassium Cyanide. From the injuries as noticed above by Dr. Deshmukh at Ex. 34 and duly corroborated and supported by the post-mortem report at Ex. 35, it becomes clear that the deceased was having external injuries, One would not expect such injuries on the person of the deceased if it was the case of suicidal poisoning as urged by the defence.
33. Therefore, looking to the above said evidence as a whole we reach to the conclusion that the learned trial Judge was perfectly justified in coming to the conclusion that the deceased had died homicidal death. Mr. Shethna has invited our attention to the fact that Dr. Deshmukh has stated that at the time of post-mortem examination he had found six bangles on each hand of the deceased. In other words, there were 12 in tact bangles. Mr. Shethna has urged that in any case the deceased must have offered some resistance at the time of smothering and at the time of administering of Potassium Cyanide and at that time some of the Bangles must have been broken. But the breaking of the bangles in our opinion would depend upon the way and the manner in which the resistance is being offered. It appears that there were certain injuries on the person of the deceased including the injuries on the lips and chin. Dr. Deshmukh has expressed the opinion that the abovesaid injuries would have been caused when the mouth of the deceased was forcibly opened and closed. Dr. Deshmukh has also expressed the opinion that with a flew to make the deceased swallon the liquid her wose must have been pressed open. But it requires to be appreciated that the position regarding the bangles would depend upon the way in which the protest is being offered by the deceased. Merely because the bangles were found to be intact at the time of the postmortem examination, we are not inclined to believe that there was no smothering. Thus on the overall appreciation of the evidence on record, we come to the conclusion that the learned trial Judge was perfectly justified in coming to the conclusion that it is the case of homicidal death of smothering and the administration of potassium cyanide. This important circumstance enlisted at Sr. No. 5 therefore is duly established by the prosecution. It also appears that the accused had putforward a false reason of death of the deceased by fall in the bathroom at the time of brushing of the teeth. In view of this position the circumstance No. 6 is also duly proved and established by the prosecution.
34. The next circumstance which the prosecution wanted to establish is the recovery of a small "Padika" or a piece of paper stained with Potassium Cyanide. The panchnama regarding the scene of offence is at Ex. 24. Two panchas namely Narendrabhai at Ex. 23 and Kanubhai at Ex. 25 were examined to prove the above said panchnama at Ex. 24. But the above said two panchas have not supported the case of the prosecution regarding the recovery of the above said padika or a piece of paper stained with Potassium Cyanide. In view of this position we do not place any reliance upon the panchnama at Ex. 24. Therefore, we are not in a position to reach to the conclusion that the above said "Padika" was recovered from the bathroom of the house belonging to the appellant-accused. But this aspect of the case is of lesser important due to the fact that the viscera was found to be containing potassium cyanide as reported by the Forensic Expert consequent upon which we have reached to the conclusion that the death was a homicidal one.
35. The 8th circumstance which the prosecution wanted to establish is that the accused was working at one Institution known as Cadila Laboratory and had opportunity to obtain a small but lethal dose of Potassium Cyanide from any Chemist or Drugist. The learned trial Judge had reached to the conclusion that the appellant-accused was working at Cadila Laboratory and he must have an opportunity to procure the dose of Potassium Cyanide from any Chemist or Drugist. Mr. Shethna has urged that there is nothing on record to show as to what activities are being carried out by the above said Institution namely Cadila Laboratory. Mr. Shethna is justified in making the above said submission. But the fact remains that the accused was working at the above said Institution. In view of this position it would have been easier for him to obtain small dose of the above said chemical with a view to carry out his plan.
36. To recapitulate we would stress that the prosecution has been able to establish with the help of legal, reliable and unimpeachable evidence that the accused Prakash Kumar Gandhi was residing with his wife deceased Smt. Pravinaben at the relevant time and that the relations between them were far from cordial and were strained. It is also established that the accused had filed the H.M.P. No. 166 of 1982 against the deceased for obtaining a decree for Restitution of Conjugal Rights. The prosecution has also been able to establish beyond any manner of doubt that the deceased had died a homicidal death after smothering and administration of Potassium Cyanide. It is. also established that the deceased was having the above said injuries as noticed by Dr. Deshmukh at the time of the post-mortem examination. Looking to this circumstance which have been duly established by the evidence on record, we find ourselves in disagreement with the suggestion made by the defence that the instant one would be a case of suicidal poisoning.
37. The learned trial Judge has placed reliance upon the Supreme Court Decision in the case of Ramgopal v. State of Maharashtra 1972 Cri LJ 473 : (AIR 1972 SC 656). In this decision while considering the case of murder by poisoning the Supreme Court had occasion to say as under:--
In a case of death by poisoning it is only when the motive is there and it is proved that the deceased died of the poison in question that the accused had that poison in his possession and that he had an opportunity to administer the poison to the deceased that the Court can infer that the accused administered the poison to the deceased resulting in his death.
The learned trial Judge had reached to the conclusion that the motive was duly established and that the deceased had died of the poisoning in question namely Potassium Cyanide. The learned trial Judge had also recorded a finding that the accused had an opportunity to be in possession of the above said chemical namely Potassium Cyanide and he had an opportunity to administer the poison to the deceased.
38. We have subjected the evidence on record to a close scrutiny and same we feel that the learned trial Judge was justified in coming to the conclusion regarding the guilt of the accused. The principle laid down in the case of Ramgopal v. State of Maharashtra 1972 Cri LJ 473 : (AIR 1972 SC 656) has been appreciated and correctly applied by the learned trial Judge.
39. We therefore reach to the conclusion that there was a motive for the appellant to get rid of his wife. The injuries on the person of the deceased would go to show that the deceased was being subjected to physical cruelty. In view of this position, we reach to the conclusion that the relations between the appellant-accused and the deceased were not cordial. Thus appellant-accused had a clear motive for getting rid of the deceased.
40. The medical evidence on record duly supported by the opinion of the Forensic Expert goes to show very clearly that the deceased had died because of the Potassium Cyanide. We have reached to the conclusion that the accused had an opportunity to procure lethal dose of the above said poison. It is undoubtedly clear that the appellant-accused had ample opportunity to administer the poison to the deceased. In view of this position, we are satisfied that the ingredients as enumerated in the above said Supreme Court decision are fully established in the instant case.
41. Thus in our opinion, the learned trial Judge was perfectly justified in recording, the judgment of conviction and sentence. We have not been persuaded by the able arguments advanced by Mr. Shethna to change our view to come to the conclusion that the case is possibly of a suicidal death. In view of this position we are of the opinion that the judgment as pronounced by the learned trial Judge requires to be upheld and confirmed and the present Appeal requires to be dismissed.
42. We accordingly hereby dismiss the Appeal and confirm and upheld the judgment of conviction and sentence as pronounced by the learned Additional City Sessions Judge in Sessions Case No. 6 of 1984, dated 8-10-84.