Bharatbhai Mohanbhai Chavda - Dalvadi vs State Of Gujarat on 5 February, 2021

[Cites 22, Cited by 0]

Gujarat High Court

Bharatbhai Mohanbhai Chavda - Dalvadi vs State Of Gujarat on 5 February, 2021

Equivalent citations: AIRONLINE 2021 GUJ 1042

1. By way of the present appeal under section 374 of Page 1 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT the Code of Criminal Procedure, 1973, the appellants - original accused - husband and his parents, have challenged the judgement and award dated 09/01/2014 passed by learned Additional Sessions Judge, Dhrangadhra in Sessions Case No.19 of 2011, whereby they have been convicted for the offences punishable under Sections 302, 34, 120-B and 201 of the Indian Penal Code and sentenced for life imprisonment. The appeal came to be admitted on 16/07/2014. Record and proceedings were sent by the trial court along with paper book.

2. Short facts, arising from the record, are as under:

That one Muljibhai Narsinhbhai Chavda- Dalwadi, resident of village: Charadva, Taluka Halvad, District:

Dhrangadhra informed the PSO of Halvad Police Station by personally remaining present in the Police Station itself, at around 20:30 hours and declared that when he was present in the market at about 13:30 hours, he received a phone call from his son namely Sanjay that he has seen number of persons gathered near the house of Mohanbhai (i.e. cousin brother of Muljibhai) (Appellant No.2) and therefore he immediately came back from the market and went to the house of Mohanbhai, where he saw the dead body of Gitaben - wife of appellant No.1 and daughter-in-law of appellant Nos.2 and 3, lying on the floor.

Nileshbhai, who is real brother of appellant No.1 informed Muljibhai that Bharatbhai - appellant No.1 had gone to Dhrangadhra to attend engagement ceremony and appellant No.2 had gone to take measurement of the window to a village and appellant No.3 had gone to purchase some articles from Morbi. When Nileshbhai came for lunch, his Page 2 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT nephew aged about 5 years was asking for opening the door, however his mother was not opening the door and therefore, the door was broken open. He was again informed by Nileshbhai that he along with help of other persons took down the dead body of Gitaben, which was hanging on the ceiling fan. Subsequently, he informed the relatives of the deceased about the incident. PSO informed PSI Chanura for preliminary inquiry. Accordingly, he visited the place and found the dead body lying on the floor. Thereafter, he prepared an inquest panchnama of the dead body as was subsequently sent for postmortem on the same day i.e. on 15/01/2011 to the Government Hospital of Dhrangadhra wherein, postmortem was carried out on the next day i.e. on 16/01/2011 between 12 noon and 2 pm. Certain injuries were found from the person of the deceased lady and it was found that the cause of death was due to cardiac respiratory arrest due to mechanical asphyxia occurred due to smothering and strangulation.

The complainant - father having came to know about the cause of death, lodged an FIR on 16/01/2011 at around 16:40 hours against all the appellants for the offences punishable under sections 302, 34, 201 and 120-B of the Indian Penal Code. All the appellants came to be arrested. On completion of investigation, charge-sheet was filed. Thereafter, charge-sheet was forwarded to the concerned Judicial Magistrate, who committed the case to the learned Sessions Judge. Charge (Exh.9) came to be framed against the appellants - accused, who denied the charges levelled against them and therefore, trial proceeded at the instance of the public prosecutor.

Prosecution examined in all 30 witnesses to establish the charges against the accused and produced Page 3 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT several documents. The accused did not examine any witness in their defence. Learned Sessions Judge after considering the depositions and documentary evidence, all the accused were held guilty for the aforesaid offences and were convicted and sentenced accordingly. Hence, this appeal.

3. Mr.Kishor B. Anandjiwala, learned Senior Advocate assisted by learned advocate Mr.V.K.Anandjiwala, would submit that the reasons assigned by the learned trial court for convicting the appellants are unacceptable, when there is no eye witness to the crime and all the witnesses (including the complainant - father of the deceased) except Medical Officer and police personal, have not supported the case of prosecution and declared hostile by the prosecution. He would further submit that in absence of complete chain of circumstances, which led to the conclusion that only and only accused are the persons, who have committed offence, the trial court ought not to have believed and accepted the serious charges and ought to have acquitted the appellants.

3.1 He would submit that learned Trial Court has erred in not accepting the case put forward by the accused persons about the plea of alibi when all the witnesses, who have been examined by the prosecution themselves, have stated that none of the appellants was present in the house when alleged incident had taken place.

3.2 He would submit that learned Trial Court has neither examined Muljibhai Narsinhbhai Chavda, at whose instance, first disclosure was made about the incident nor examined Nileshbhai, who is real brother of appellant No.1 and had informed Muljibhai about commission of suicide by Page 4 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT Gitaben. These witnesses have thrown more light about actual occurrence of incident and upon what circumstances, the dead body was taken down from hanging condition and was lying on the floor.

3.3 He would further submit that no FIR was lodged immediately by the father, even after reaching at the place of occurrence. However relying upon postmortem note, FIR has been lodged at the instance of the father. He has also attacked credibility of oral testimony of medical officer PW-13 at Exh-64 as well as postmortem note at Exh-66 and would submit that Doctor's testimony is doubtful and therefore, the judgment of the learned Trial Court, which has relied upon only circumstance about commission of so called culpable homicide, is to be discarded and the appellants should be acquitted.

3.4 Elaborating his submissions, learned Senior Advocate Mr.Anandjiwala firstly taken us through Exh-110 i.e. Station Diary, which was recorded at the instance of Muljibhai Narsinhbhai Chavda, wherein he has categorically stated that Nileshbhai had informed that he has taken down the dead body, which was hanging on the ceiling fan with the help of other persons. He would submit that as per the said Station Diary and as per the say of Nileshbhai, the door was broken open, which was closed from inside by the deceased before committing suicide. He would submit that PSI Chanura, who was handling investigation, immediately visited the place. He found dead body of Gitaben lying on the floor. Inquest Panchnama was drawn and dead body was sent for postmortem. He would submit that certain injuries were found on person of the deceased and cause of death is due to Page 5 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT smothering and strangulation. Having came to know about the cause of the death in postmortem note, the father lodged an FIR on the next day. He would submit that the complainant, who had alleged harassment and mental torture by all the family members, has not supported his own statement when he was called for deposition before the trial Court. Similar are the statements of close relatives of the deceased. However, none of them have supported the case of prosecution about homicide and having done any cruelty on the deceased by the appellants. On the contrary, they have stated that the deceased was suffering from some mental problems and for the reasons best known to her, she has committed suicide. In such circumstances, when there is no eye witness to the incident and there is no support from the witnesses upon whom the prosecution has relied upon, all the burden lies upon the prosecution to prove the case, which the prosecution has miserably failed to prove in the case.

3.5 He would further submit that the panch witnesses, who carried out panchnama of scene of offence, have also not supported the case of the prosecution and therefore, the same could not have been relied upon by the trial court and cannot be read as piece of corroboratory evidence. He would further submit that the articles were collected during the investigation and sent for report from FSL and the report was received by the Investigating Officer has no evidenciary value in the eyes of law as the panch witnesses have not supported the case of prosecution and the trial court ought to have discarded instead of relying upon the same.



3.6            He would submit that it is the case of appellants



                                    Page 6 of 37

                                                          Downloaded on : Wed Jan 12 06:52:22 IST 2022
         R/CR.A/303/2014                                      JUDGMENT

from the beginning that the appellant No.1 had gone for an engagement ceremony at Dhrangadhra, which is about 2 hours drive from village: Charadva, where the incident had taken place. Whereas appellant No.2 had gone for measurement of window and appellant No.3 along with her daughters had gone to Morbi for some purchase. These aspects though supported by the witnesses in the cross- examination, the same has been discarded by the learned Sessions Judge. Learned Trial Court ought to have accepted the plea of alibi and should not have convicted and sentenced all the appellants when none of them were present at the time of incident.

3.7 Mr.Anandjiwala, learned Senior Advocate for the appellants has taken us to the cross examination of the complainant- father - PW-14 at Exh-86 and would submit that when he went to the place of incident and found dead body of his daughter, he inquired with Nileshbhai, who was present at the time, informed that appellant No.1 had gone to Dhrangadhra, appellant No.2 had gone to take measurement of window and appellant No.3 had gone to purchase some articles from Morbi. He would submit that father stated that his daughter had happy married life of 9 years and had two children. She was neither harassed nor tortured by any of the appellants. He has categorically stated that his daughter was under depression and therefore she had committed suicide. Similar was the say of another witness PW-15 at Exh-89, who happens to be wife of the complainant and mother of the deceased. Brother of the deceased PW-16 Exh-90 has also declared on the same line. Other close relatives, who have been declared hostiles, also deposed on the same line.

Page 7 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

         R/CR.A/303/2014                                       JUDGMENT




3.8           Our attention is also drawn to the deposition of

Bhudarbhai Premjibhai Songara, PW-25 at Exh-100 and submitted that appellant No.1, who is husband of his niece, was present at his residence at Dhrangadhra to attend engagement ceremony of son of Chandubhai Talsibhai, who has been examined at Exh-28 at Exh.103. By taking us through the deposition of Chandubhai Talsibhai, in his cross- examination he has categorically stated that appellant no.1 was with him at 11:00 am and upon receiving information, he left Dhrangadhra. All witnesses have established that appellant No.1 was not present in the house when the deceased had committed suicide.

3.9 He would further submit that Investigating Officer Ramjibhai Tapubhai- PW-30 at Exh-107, in his cross- examination has admitted that certain statements of witnesses were recorded, wherein they have stated that appellant No.1 was at Dhrangadhra and this witness has recorded several statements of witnesses, who were present in the engagement ceremony at Dhrangadhra, stating that appellant No.1 was present at Dhrangadhra. He would submit that PSI has admitted that witnesses, whose statements have been recorded, have not been examined by the prosecution and therefore, would submit that considering the depositions of those witnesses, the appellant No.1 has proved his alibi and learned Trial Court ought to have accepted the alibi of appellant No.1 and that the trial court ought to have held that prosecution has miserably failed to prove the case, which was lying on circumstantial evidence.

3.10 As far as medical examination is concerned, he has attacked on the medical officer taking us through the Page 8 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT deposition and the manner and method on which postmortem note was prepared at his instance. Dr.Arunkumar Prasad PW- 13 at Exh-64, in his chief examination, has stated that he is not sure whether injury no.1 and injury no.6 are postmortem or ante-mortem and he sought time. After 7 months, he was further examined by the prosecution, at that time, he has declared that injury no.1 and 6 were postmortem. In this case, injury no.1, which were burn injury, injury no.6, which is in nature of cut injury on the first finger of the right hand.

3.11 He would submit that under depression, the deceased had initially tried to commit suicide by pouring kerosene upon herself in the bathroom. However she could not sustain burn injuries and therefore, she went to the room and hung herself with the fan. This aspect is not properly dealt with by the trial court.

3.12 He would further submit that burn injury is of 1st and 2nd degree over the face, neck, upper part of chest upto level of breast, back up to the level of L1 vertebra and therefore, as her clothes were burnt she had put-on clothes over her and thereafter with the help of saree, she had hanged herself with the ceiling fan.

3.13 By taking us through the internal injury referred to in the postmortem notes, he would submit that there is fracture of thyroid cartilage, which is possible if the person hangs himself/ herself. He would submit that medical officer himself was not sure about the cause of death and therefore, he has stated that the cause of death was due to cardiac respiratory arrest due to mechanical asphyxia, due to smothering or strangulation. He has attacked on credibility of Page 9 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT Medical Officer, pointing out his cross-examination in which he has admitted that he was involved in another offence, which was lodged by the CBI for creating false postmortem note. He therefore, would submit that in such circumstances, the say of Medical Officer and report of postmortem ought to have been discarded. If the medical evidence led by the Medical Officer is discarded, nothing would survive in the case and therefore, the appellants may be acquitted.

3.14 In support of his submissions, he has relied upon the decision dated 10/05/2019 rendered by the Division Bench of this Court in Criminal Appeal No.146 of 2019 and other allied appeals in case of Chetanbhai Natwarlal Shrimadi vs. State of Gujarat wherein evidentiary value of an expert have been dealt with. He would submit that Division Bench upon relying upon several decisions of Hon'ble Apex Court, has observed that an expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish to the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. In this case, Doctor is not a reliable expert witness and has not furnished the scientific criteria so that his opinion can be accepted and only and only on his opinion, the appellants can be convicted.

3.15 In support of his submissions, he has also relied upon the decision of the Hon'ble Apex Court in the case of Sharad Birdhi Chand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622 = (1984)4 SCC 116 and submitted that the prosecution has to prove its case beyond Page 10 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT reasonable doubt, however in the present case, the prosecution miserably failed to establish the chain of circumstances against the appellants and therefore, this appeal may be allowed and the appellants may be acquitted.

4. On the other hand, Ms.Krina Calla, learned Additional Public Prosecutor appearing for the respondents, has vehemently opposed this appeal and backed the reasons assigned by the learned Trial Court while convicting the appellants for crime of murder. She would submit that it is an undisputed fact that the deceased, who happens to be wife of appellant No.1 and daughter-in-law of appellant Nos.2 & 3 along with two minor children, were residing together under one roof. When PSI Chanura visited the house of the appellants, dead body of Gitaben was lying on the floor. Inquest panchnama was prepared and thereafter the dead body was sent for postmortem. She would submit that as per say of Nileshbhai, who is real brother of appellant No.1, so called information given at the instance of one Muljibhai in Police Diary discloses about the suicide by the deceased. Muljibhai is also first cousin of appellant No.2. In absence of any close relatives of the deceased, subsequent to lady allegedly having committed suicide on 15/01/2011, the entry was recorded in the police station diary at around 20:30 hours i.e. after about 7 hours, after the dead body alleged to have been found in hanging condition.

4.1 Initially it was not the case of said Muljibhai that close relatives of the deceased i.e. complainant, his wife (parents of the deceased) and brother were present. She would submit that even the plain reading of entry makes it clear that the said Muljibhai has not seen the dead body Page 11 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT hanging though he reached at the house at noon itself. Therefore, all the accused have from the beginning tried to mislead the investigating agency putting up the theory as if the deceased had committed suicide in the house.

4.2 She would submit that having received the correct cause of death, an FIR was lodged at the instance of the father of the deceased, who has subsequently denied in his deposition with regard to what was referred in the FIR that too on the ground of settlement between the parties, which has come on record. She would submit that Investigating Officer on 16/01/2011 i.e. after receiving the cause of death, informed his higher officer - Deputy Superintendent of Police, Dhrangadhra and by messaged (Exh.111) to visit the place since it was a case of death in matrimonial home.

4.3 She would submit that on 17/01/2011, panchnama was prepared between 11 hours to 15 hours, however panchas have not supported the said scene of offence panchnama and therefore, she has relied upon visitation report received from Class-II Officer, Forensic Science Laboratory, Surendranagar, who has visited the place on the same day i.e. on 16/01/2011 between 11 to 15 hours.

4.4 By taking us through the visitation report at Exh.114, she would submit that in the bathroom, the walls and ceilings was found having black burn patches and other items like kerosene and match-box were also lying in the bathroom. She further submitted that when the room, wherein alleged incident has taken place, was examined with magnified glass, the doors and stoppers were not damaged in any manner and therefore, the say of witnesses, who have stated that the door Page 12 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT was broken open was not supported by the evidence.

4.5 She would submit that in the said visitation report, it has also been stated that the fan alleged to have been used for hanging, was having no marks of hanging by a person, nothing like saree or rope and therefore, the theory put forward by the appellants that initially the deceased tried to commit suicide by pouring kerosene on herself in the bathroom and she sustain burn injury but could not kill herself and thereafter she had gone to the room and hung herself on the fan and committed suicide, is not acceptable. She would submit that learned advocate of defence did not oppose exhibition of the said report and therefore, same is exhibited at Exh.114.

She would submit that on 16/05/2013, a pursis was submitted on behalf of the complainant that the matter is amicably settled between the parties and immediately thereafter on 31/05/2013, the complainant and his family members and their relatives were examined, who have not supported the case of the prosecution. Since they are declared hostile, their depositions qua admission on their part in the depositions, is relevant to the case of the prosecution. She would submit that when the incident has taken place in the house where all the accused are residing together, it is the duty of each of the appellants-accused to explain how the incident has taken place. In the present case, they have miserably failed to do so as have failed to establish their plea of alibi.

4.6 By taking us through the deposition of Medical Officer Dr. Arunkumar Prasad, as well as postmortem note, Page 13 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT she has vehemently submitted that it is a case of homicide, which has taken place in the house of the appellants. Medical evidence as well as postmortem notes establish that the deceased was firstly smothered and thereafter her dead body was put to ablaze by all the accused to destroy the evidence and creating totally an unbelievable story.

4.7 By taking us through the external injury recorded in the postmortem note at Exh-66, she would submit that the deceased had sustained five abrasions on her hands and on both knees. She has also received external cut injury on first finger of her right hand as well as burn injuries of 1st and 2nd degree over the face, neck, upper part of chest upto the level of breast, back upto the level of L1 vertebrae, both knee joints, both upper limbs, with pilling of skin on both cheeks, neck, forearm and hand on both sides, etc., which suggests that first she was smothered and thereafter by pouring kerosene on the front side of the body, she was tried to put ablaze. She would submit that her mouth was partially open, tongue was inside, both eyes were partly open and some congestion with petechial hemorrhage in trachea, which supports the case of prosecution about smothering and strangulation.

4.8 She would submit that while explaining internal injury, it was specifically mentioned that both the layers of pleura were congested on both the sides, lumen of larynx was empty, thyroid cartilage was fractured at midline and most importantly no carbon particles were present in the lumen of larynx. She would submit that if the case put forward by the appellants was that she herself put her ablaze, carbon particles should have been found in the lungs if she tried to Page 14 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT burn herself when she was alive and had inhaled. She would submit that in the postmortem, Doctor has specifically referred to injury of abrasions on the body, are antemortem but have not mentioned about burn injuries and cut injury on the first finger, itself would not be fatal to the case of prosecution since he has stated before the learned Trial Court that both the injuries i.e. injury Nos.1 and 6 were ante- mortem. Even his deposition qua explanation or clarifying injury Nos.1 and 6 might have been recorded after seven months but post-mortem note if perused, was prepared immediately after the death, which supports the say of the expert.

4.9 By taking us through the cross-examination of the said Medical officer, she would submit that the accused has miserably failed to bring out anything against the postmortem notes prepared by the Doctor. As the doctor was involved in some other offences, on that ground only, postmortem report as well as his deposition cannot be discarded.

4.10 She has also taken us through the relevant part of Modi's Medical Jurisprudence and Toxicology (26th edition) and has tried to support case of prosecution. She would submit that it is true that nobody has seen the incident, however when the murder has taken place in the house, undisputedly the deceased was residing with all the appellants-accused, it is duty of those persons, who are residing together, to explain in what manner and method the incident has taken place. In support of her submissions, she has relied upon the decision rendered by the Hon'ble Apex Court in the case of Jayantilal Verma vs. State of M.P. (Now Chhattisgarh) reported in (2020)11 SC 3. She would Page 15 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT submit that in the said case also wife was found dead and cause of death being asphyxia due to strangulation and it was opined that in such cases, while the initial burden to establish the case would be upon the prosecution, it would be of a relatively light character. There would be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. They could not get away by keeping quiet and offering no explanation or explanation in the nature of alibi with cogent evidence.

4.11 She would further submit that even alternate arguments on behalf of the appellants that if the court does not believe about suicidal death, there is material to establish that the appellants are only persons, who have committed the offence, as alleged by the prosecution. In view of the facts and all the circumstances, which are gathered from the house, only and only involvement of the accused persons, who were presumed to be in the house, is established as all of them were residing together with the deceased lady.

4.12 As far as the claim put forward by the appellants of alibi is concerned, she would submit that the appellants have miserably failed to establish their presence at another place when alleged incident had taken place. She would submit that it emerges from the statement of witnesses, even from all hostile witnesses, that engagement of the person, was first cousin of the deceased and not of the appellant No.1 - Bharat and therefore, presence of deceased was expected at Dhrangadhra and not of appellant No.1.

4.13 She would further submit that the prosecution was mislead by all the family members from the beginning and Page 16 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT therefore, such alibi has been claimed. She would further submit that it is true that prosecution has not examined witness Muljibhai, whose information is on record as well as of witness Nileshbhai, who informed about the so called incident to Muljibhai as well as of two witnesses namely Sunilbhai @ Kala and Chandubhai Talsibhai, whose statements were recorded to prove the presence of appellant No.1 at Dhrangadhra. It is true that those witnesses have not been examined, however if the defendants intended to claim alibi, they ought to have examined all these witnesses in their defence.

4.14 She would submit that certain provisions of the Indian Evidence Act,1872 came into play and in such circumstances, particularly provisions of Sections 11, 103 and 106 of the Evidence Act, when each of the appellants have claimed their presence at different places at the time of incident and they want to prove the same in the court, they are supposed to prove their presence at different place, which the appellants have miserably failed.

4.15 In support of her submissions, she has relied upon the decision rendered by the Hon'ble Apex Court in the case of Binay Kumar Singh V/s. State of Bihar reported in (1997)1 SCC 283. She has also relied upon the decision rendered in the case of Darshan Singh V/s. State of Punjab reported in (2016)3 SCC 37 and she would submit that plea of alibi is not one of the general exceptions contained in Chapter IV of the Indian Penal Code. As per section 11 of the Evidence Act, plea of alibi taken by the defence is required to be proved only after prosecution has proved its case against the accused. The first condition is proved by the prosecution Page 17 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT and thereafter burden is on defence side to prove their alibi. In the present case, the defendants miserably failed to prove their alibi and therefore, the appeal may be dismissed.

4.16 Ms.Krina Calla, learned APP has also relied upon the decision rendered in the case of Javed Abdul Rajjaq Shaikh vs. State of Maharashtra reported in (2019)10 SCC 778 while dealing with the medical evidence about difference between throttling, strangulation and hanging, she would submit that by relying upon Medical Jurisprudence, Hon'ble Apex Court has held that suicidal strangulation is not very common and when medical evidence establishes, it is case of homicidal by throttling and smothering and in the present case therefore, the theory put forward by the defence cannot be accepted.

By relying upon the decision rendered by Bombay High Court (Nagpur Bench) in the case of Sk.Hasan Sk.Khannu Rayaliwale vs. State of Maharashtra reported in (2004)1 DMC 134, she would submit that the Division Bench has relied upon medical evidence even though there was some mistake in the postmortem note, which has been clarified by the Doctor in his deposition before the Court.

By relying upon the decision rendered by Madras High Court in the case of Dhandapani vs. State in Criminal Appeal No.427 of 2002, she would submit that medical jurisprudence is described in detail in paragraph nos.11 and 12 of the aforesaid judgement. She would submit that it is an undisputed fact that no carbon particles were found from the body of the deceased and therefore, theory put forward that initially the deceased had tried to commit suicide by pouring kerosene on herself and subsequently hung herself Page 18 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT is baseless and cannot be accepted. She therefore prays to dismiss the present appeal.

5. Heard learned advocates appearing for the parties and perused the record and proceedings of the case. We have gone through the reasoning part of the judgement impugned in this appeal. It is an undisputed fact that the deceased Gitaben had married with appellant No.1 before 9 to 10 years from the date of incident and was residing with appellants at village: Charadva, Taluka: Halvad. The Investigation begun for the first time when the PSO recorded an entry 15 of 2011 (Exh.110) at 20:30 hours, which was recorded as accidental death under section 174 of the Code of Criminal Procedure. If we closely scrutinize the said entry, it appears that Muljibhai had received a phone call from his son Sanjay and reached there and saw that number of persons were gathered at the house of his cousin Mohanbhai- appellant No.2. He found that dead body of Gitaben - wife of appellant No.1 was lying on the floor. Nileshbhai, who happens to be real brother of appellant No.1 informed that when he came for lunch at his house, he saw his nephew, aged about 5 years, asking for lunch from her mother but she was not opening the door. Nileshbhai further informed that the door was broken open and the deceased was found hanging from the fan and thereafter the dead body was taken down from the fan. It was also found that the deceased has sustained burn injuries on the face, chest and on her hands. For the first time, the entry in Station Diary was mutated after about 7 hours of disclosure of the incident .

6. It is true that when the inquest panchnama was Page 19 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT carried out in the house and dead body was sent for postmortem, neither the complainant nor any witnesses were aware about the real cause of death, however as and when, the real cause of death came to light, subsequent to postmortem report, father of the deceased lodged an FIR and accordingly investigation including panchnama of scene of offence was prepared in presence of one Officer of the Forensic Science Laboratory. The preliminary report from FSL was produced at Exh.114 at the instance of Investigating Officer namely Ramjibhai Tapubhai (PW-30, Exh.107), which was not objected by learned advocate for the appellants and accordingly the same was exhibited.

7. The Circle Officer, Halvad had prepared a map, which was produced by the prosecution, which was exhibited at Exh.106, with the consent of the learned advocate for the defendants. If we compare map at Exh.106 with preliminary report of FSL at Exh.114, it appears that the house is encircled by wall and a land, which is open area having falia, having the main gate. Bathroom and latrin were constructed in the said falia, There were four rooms in the falia. Black patches as a result of fire were found in the bathroom. The dead body was lying in room no.4. The said room was examined by magnified glass by the Officer of FSL. The fan which was allegedly used by the deceased for hanging herself, was also examined. However there are no marks like any Saree, rope having been applied on the said fan. Therefore, theory put forward by the applicant that she has committed suicide by hanging herself is primarily not believable.

8. It is an undisputed fact that dead body was Page 20 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT received in the civil hospital at around 8:20 p.m at 16/01/2011 and the postmortem was carried out on the next date i.e. 16/01/2011 at 12 noon. The dead body was examined by two medical officers out of which, one was examined by the prosecution. Both had put their signatures on the postmortem note and have described the injuries. The cause of death referred to in clause 23, reads as under:

"Cardiorespiratory arrest due to mechanical Asphyxia due to Smothering & Strangulation."

9. "Injuries" found in clauses 17 and 20, which described the external/internal injury, reads as under:

"17. (1) 1st to 2nd degree burn over the face, neck, upper part of chest upto level of breast, Back upto level of vertebrate, Both knee joint, both upper limb with peeling of skin on both cheek, neck forearm & hand on both side.

(2) Abrasion on Rt. Buttocks at level of Iliac Spine 1.5" x 1"

(3) Abrasion 1" below 2nd injury 2.5" x 1.5" oblique in direction (4) Abrasion on the upper 1/3 of Rt. Thigh at posteriorly - 1" x 1" round in shape (5) Abrasion just below the 4th injury 1 x 1 cm (6) C.L.W. At Rt. Index finger at distal phalanx on dorsal side 3 x 1 cm oblique in direction (7) Abrasion on the Rt. Knee joint 1 x 1 cm (8) Abrasion on Lt. Knee joint 3 x 1 cm No.2, 3, 4, 5, 7, 8 are antemortem"

Page 21 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

R/CR.A/303/2014 JUDGMENT "23. Both layers of pleura congested on both side.

        -    Lumen of Larynx is empty
        -    Mucus       membrane     of    Larynx   &      Trachea

congested with petechial hemorrhagic spot.

- No carbon particle is present into lumen of larynx.

        -    Thyroid cartilage # at midline.
        -    Muscle surrounding the Larynx are bruised.
             Both lungs are Intact and congested with
             presence of hemorrhagic spot.
             Heart is full of blood."

10. Injury Nos.2 to 5 are abrasions and 7 & 8 are abrasions and antemortem whereas injury no.1, which is 1st and 2nd degree burn injuries on the front side of the body and some portion on the backside i.e. up to level of L1 only.

11. It is not acceptable theory put forward by the defendants that first she had tried to commit suicide by pouring kerosene on herself, whereas in ordinary case, the person, who intends to commit suicide will not do so by pouring kerosene only on front side. Neither on head, backside nor whole parts of the body are having burn injuries. If a living person put herself ablaze, would certainly inhale something till he/she is alive and in such circumstances, carbon would be inhaled and it would have been found in lungs. In the present case, if clause 20, which is referred hereinabove is seen, there is no carbon particles found in any of the lungs. Therefore, cause of death referred by Medical Officer that the deceased had died due to cardiac respiratory arrest due to mechanical asphyxia occurred due to smothering Page 22 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT and strangulation is required to be accepted. It is pertinent to note that there are no ligature marks on the neck of the deceased about so called hanging by the deceased herself, which may suggest that the deceased had hanged herself. There is no whatsoever ligature marks, which suggests that the lady hung herself. In absence of such marks and various injuries referred in the postmortem note and ultimately cause of death is referred as smothering and strangulation,

12. We have gone through the Modi's Medical Jurisprudence and Toxicology 26th Edition, wherein strangulation is defined as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation. Whereas smothering can be described as smothering or closure of the mouth and Nostrils. In the present case, Medical Officer has opined after examining the internal injury, the deceased was smothered and strangulated since thyroid cartilage was fractured. All these aspects have been dealt with by the Hon'ble Apex Court in the case of Ravirala Laxmaiah vs. State of Andhra Pradesh reported in (2013)9 SCC 283. In the said case, the husband was facing charges of murder of his own wife in his own house. It was argued that there no ligature marks and evidence of fracture was found. However, considering the various medical aspects and jurisprudence, the challenge to the conviction was dismissed. Para-16, 18 and 19 of the said judgement are relevant for our consideration, which read as under:

"16. So far as the medical evidence is concerned, the High Court has dealt with the opinion of Dr K.Padmavathi (PW 10), who was referred to Modi's Medical Jurisprudence and Toxicology, wherein it has been stated that, "hyoid bone and superior cornua of the thyroid cartilage are not, as a rule, fractured by any other means other than by strangulation", Page 23 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT although the larynx and the trachea may, in rare cases, be fractured as a result of a fall. The post-mortem has revealed that the fracture of the hyoid bone is characterised by the absence of haemorrhage in the tissues around the fracture.

18. So far as the medical evidence is concerned, the issue involved herein is no more res integra. This Court dealt with the issue in Ponnusamy v. State of T.N. and observed as under:

"23. It is true that the autopsy surgeon, PW 17, did not find any fracture on the hyoid bone. Existence of such a fracture leads to a conclusive proof of strangulation but absence thereof does not prove the contra. In Taylor's Principles and Practice of Medical Jurisprudence, 13th Edn, , pp.307-308, it is stated:

"The hyoid bone is "U" shaped and composed of five parts: the body, two greater and two lesser horns. It is relatively protected, lying at the root of the tongue where the body is difficult to feel. The greater horn, which can be felt more easily, lies behind the front part of the strip muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cw from the midline. The bone ossifies from six centers, a pair for the body and one for each horn. The greater horns are, in early life, connected to the body by cartilage but after middle life they are usually united by bone. The lesser horns are situated close to the junction of the greater horns in the body. They are connected to the body of the bone by the fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed.

Our own findings suggest that although the hardening of the bone is related to age there can be considerable variation and elderly people sometimes show only slight ossification.

From the above consideration of the anatomy it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the grater horns. Sometimes it would appear that the local pressure from the thumb causes a fracture on one side only. While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the application of such force, as evidenced by extension Page 24 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years.

As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact. This view is confirmed by Green. He gives interesting figures: in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green.'

24. In Journal of Forensic Sciences, Vol.41 under the title - Fracture of the Hyoid Bone in strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of strangulation, it is stated:

'The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, post-mortem detection of hyoid fracture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this findings does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We compared to case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture(n=10, each)...

25. Mr Rangaramanujam, however, relied upon Modi's Medical Jurisprudence and Toxicology, 23rd Edn., at p.584 wherein a difference between handing and strangulation has been stated. Our attention in this connection has been drawn to Point 12 which reads as under:

Hanging Strangulation

12. Fracture of the larynx Fracture of the larynx and and trachea- Very rare trachea - Often found also and that too in judicial hyoid bone (sic fracture).' hanging.

Page 25 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

R/CR.A/303/2014 JUDGMENT

26. A bare perusal of the opinion of the learned author by itself does not lead to the conclusion that fracture of hyoid bone, is a must at all the cases."

19. Dr Aman Hingorani has submitted that in the present case, the postmortem report is completely silent about the ligature mark and its characteristics, as a result of which it cannot be said that the present case was one of homicidal strangulation/ throttling as alleged by the prosecution. Dr Hingorani has placed a very heavy reliance to Modi's Medical Jurisprudence and Toxicolony wherein after emphasising that 'hyoid bone and superior cornua of the thyroid cartilage are, not, as a rule, fractured by any other means other than by strangulation", the differences between hanging and strangulation are given in tabulated form, two of them being as follows:

            Hanging                          Strangulation
      7. Ligature mark- Oblique,      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 base below the thyroid, the base of of the groove or furrow the groove or furrow being soft being hard, yellow and and reddish.

      parchment- like.                                 ***
                     ***
      14. Scratches, abrasions and    Scratches, abrasions fingernail
      bruises on the face, neck       marks and bruises on the face,
      and other parts of the body-    neck and other parts of the
      usually not present.            body- Usually present."

However, in view of the binding decision referred to hereinabove, we concur with the reasoning that has been given by the trial court, as well as by the High Court and are not in a position to accept the submissions made by Dr Aman Hingorani."

13. We have gone through the decision rendered in the case of Javed Abdul Rajjaq Shaikh (supra), Para 28 and 29 of the said judgement are relevant, which read as under:

"28. The differences between hanging and strangulation have been highlighted by Modi on Medical Jurisprudence and Toxicology, 25th Edition, as follows:

Page 26 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

  R/CR.A/303/2014                                     JUDGMENT




         Hanging                             Strangulation
                                       1. Mostly homicidal.
1. Most suicidal


2. Face- Usual      pale     and 2. Face- Congested, livid
petechiae rare.                  and 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 usually not well marked. asphyxia, very well marked (minimal if death due to vasovagal and carotid sinus effect).

6. Ligature mark - Oblique, 6.Ligature mark- Horizontal non-continuous placed high up or transverse continuous, in the neck between the chin round the neck, low down in and the larynx, the base of the the neck below the thyroid, groove or furrow being hard, the base of the groove or yellow and parchment- like. furrow being soft and reddish.

7.Abrasions and ecchymoses 7. Abrasions and round about the edges of the ecchymoses round about ligature mark, rare. the edges of the ligature mark, common.

8. Subcutaneous tissues under 8. Subcutaneous tissues the mark - White, hard and under the mark -

glistening. Ecchymosed.

9. Injury to the muscles of 9. Injury to the muscles of neck- Rare. the neck - common.

Page 27 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

  R/CR.A/303/2014                                           JUDGMENT




10. Carotid arteries, internal 10.     Carotid                     arteries,
coats ruptured in              internal coats                     ordinarily
                               ruptured.

11.Fracture of the larynx and 11.Fracture of the larynx, trachea- Very rare and may be traches and hyoid bone. found that too in judicial hanging

12. Fracture- dislocation of the 12. Fracture- dislocation of cervical vertebrae- Common in the cervical vertebrae-

juridical hanging                Rare.

13. Scratches, abrasions and                 13. Scratches, abrasions
bruises on the face, neck and                fingernail    marks     and
other parts of the body -                    bruises on the face, neck
Usually not present                          and other parts of the body
                                             - Usually present.

14. No       evidence   of     sexual 14. No evidence of sexual
assault.                              assault.

15.Emphysematous bullae on 15. Emphysematous bullae surface of the lungs - Not on the surface of the lungs -

present May be present.

29. As to what is the distinction between strangulation and throttling is also dealt within the selfsame work:

"Definition. - Strangulation is defined as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation.

Ligature strangulation is a violent form of death, which result from constricting the neck by means of a ligature or by nay other means without suspending the body.

When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold).

A form of strangulation, known as bansdola, is Page 28 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT sometimes practised in northern India. In this form, a strong bamboo or lathi (wood club) is placed across the throat and another across the back of the neck. These are bound together, and unfortunate victim is squeezed to death. The throat is also pressed by placing a lathi or bamboo across the front of the neck and standing with a foot on each end of lathi or bamboo.

Garrotting is another method that was used by thugs around 1862 in India... A rope or a loincloth is suddenly thrown over the head and quickly tightened around the neck. Due to sudden loss of consciousness, there is no struggle. The assailant is then able to tie the ligature."

Injury referred to hereinabove found from the postmortem note and deposition of medical officer, clearly established the case of homicidal death and not of suicide in nature.

14. In the case of Sk.Hasan (supra), the court has accepted the say of an expert in medical evidence.

15. In the case of Dhanpani (supra), Madras High Court dealt with whether the burn injuries is inflicted before or after death from the injury found from the postmortem in the said case and held that it was case of homicidal. Para- 10, 11 and 12 are relevant, which reads as under:

"10. From H.W.V.Cox Medical Jurisprudence and Toxicology, the relevant portion relied on by the learned senior counsel for the appellant is as under: "Were the Burns Inflicted Before or after Death? -- This primary decision is of great forensic importance, because of the possibility of the disposal of a criminal death in a fire. The differentiation between ante-mortem and post-mortem burns must be attempted in every examination of a fatal burning. Although this may be difficult or even impossible in some cases, it must be uppermost in the mind of the medical examiner.

The most important criterion is the presence or absence of a Page 29 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT vital reaction at the margin of the burns. Where par of the body surface is burnt during life, there will almost inevitably be a zone of hyperaemia at the edge of the burn area, except when death follows very soon afterwards. While the person is still alive, there may be reddening of the skin even beyond this zone, but this may fade after death leaving only the marginal zone of erythema at the edge of the burn. This may vary in width but is usually a centimetre or so unless death supervened very soon. It is due to oedema of the tissues and capillary dilatation and merges with the edge of the burn which may show blistering or charring. Unfortunately, where death occurs very rapidly ( within a few moments) then the erythematous margin of an ante-mortem burn may be indistinct or even absent. However, wherever survival persists for more than a few moments it is almost invariably found.

The presence of a vital reaction is absolute proof that the person was alive during the fire as this cannot be simulated in a postmortem burn. Blistering and reddening of the actual burned area can occur in a postmortem burn but not the peripheral zone of vital reaction.

Difficulty arises where the body is completely covered with burns so that no unburnt skin remains to display a vital reaction. Where the body is actually charred or incinerated then naturally this aspect of determining the time of the burn is impossible."

"The next important matter is the presence of carbon monoxide in the body, which may be obvious even externally by the pinkness of the post-mortem hypostasis. In many fire victims, the first incision at autopsy reveals a cherry-pink colour of the blood and muscles which can be confirmed by simple spectroscopic examination to be due to carboxyhaemoglobin. Even in rapid fires such as in automobiles, considerable quantities of carbon monoxide may be released and be respired even though life only survives for a moment or two.

However, great caution must be used in interpreting carboxyhaemoglobin in fire victims. The following two rules are of first importance:-

(a) If the tissues of a deceased victim contain a significant quantity of carbon monoxide (say more than 10% saturation) then the victim must have been alive during the fire.

(b) However, if the tissues contain no carbon monoxide, this Page 30 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT does not mean that he must have been dead during the fire.

This latter statement is of great importance, as several cases have occurred in which false accusations of murder have been made against persons where alleged victims have been found dead in a fire with no carbon monoxide in their body. It is a con ed fact that undoubted cases of ante-mortem fatal burns have no carbon monoxide in their blood-streams, due to a variety of reasons such as low production of carbon monoxide, convection currents, rapid death, and another factors which make it quite unsafe to use the absence of carbon monoxide as a criterion of death before the fire occurred. However, the converse can be accepted with confidence, that is, the presence of carbon monoxide means that the person was alive during the fire".

11. From MODI's Medical Jurisprudence and Toxicology, the relevant portion pointed out is extracted:

"Clinical Features:

Clinical features are divided into three stages: the stage of inspiratory dyspnoea;

the stage of expiratory dyspnoea and the stage of exhaustion and respiratory failure.

In the first stage, the face nears an anxious look and the patient complains of heaviness in the head and ringing in the ears. The lips are livid, and the eyes prominent. The respiration becomes deep, hurried and laboured, the extraordinary muscles of respiration being called into play. The blood pressure rises and the pulse becomes slow. The consciousness is usually lost at the end of this stage, which lasts for one minute.

In the second stage, because of retention of carbon dioxide, which falls as the blood lactate content increases and lack of oxygen, the respiration is more laboured and spasmodic and there may be clouding of consciousness, convulsions, and even relaxation of sphincters. Owing to the venous and capillary stagnation, the face and the hands are deeply congested and cyanosed and there is considerable exudation of fluid in the mouth and the lungs due to increased capillary permeability. The fluid may even be blood tinged in the terminal stage. Tongue injured by the teeth is seen protruding. During this stage, which lasts one to two minutes, effects of sympathetic and para sympathetic stimulation manifest, for example, increased secretion of Page 31 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT saliva, increased heart rate and increased gastrointestinal mobility, incontenence of bowls and bladder etc. In the third stage, (of two to three minutes duration), the respiratory and the other nervous centres are paralysed, due to cerebral anoxia, which damages the brain permanently. The muscles become flaccid, there is complete insensibility, the reflexes are lost and the pupils are widely dilated. The blood pressure falls. Prolonged sighing inspirations occur at longer and longer intervals until they cease altogether and death ensues. The pulse is scarcely perceptible but the heart may continue to beat for ten to fifteen minutes after respiration have quite ceased.

The three stages last for about three to five minutes before death takes place. They may be prolonged for two or three times as long. Occasionally, asphyxia may bring about death almost instantly. Artificial respiration, if applied immediately, may revive the heart and reverse the vicious symptoms.

(a) External.

The face is either calm and pale in slow asphyxia or distorted, congested and cyanosed in cases of sudden asphyxia. The lips and nails are livid. Cadaveric lividity is more marked and best seen within few hours of death. The tongue is protruded in most cases and the frothy and bloody mucus comes from the mouth and nostrils. Rigor mortis is usually slow to commence,but may be rapid in some cases.

(b)Internal.

The mucous membrane of the trachea and the larynx is cinnabar-red due to its injection and contains froth. The lungs are dark and purple in colour and gorged with dark venous blood. On being cut, they exude frothy, dark, blood stained fluid. The air-cells are distended or even ruptured due to emphysema. The right cavity of the heart is full containing dark coloured, imperfectly clotted blood, and so are the pulmonary artery and the venae cavae. The left cavity, the aorta and the pulmonary veins are empty. In many cases, both sides of the heart are found to be full. If examined soon after death but after rigor mortis has set in, the heart is found contracted and empty or the tension in the abdomen presses on the inferior vena cava and drives blood up into the heart. Similarly, the lungs are found heavier with the blood collected in the dependent parts if examined sometime after death, or the tension in the abdomen or contraction of the heart muscle will drive more blood into the lungs, irrespective of the cause of death.

The brain is congested, but not so much as in death from Page 32 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT coma. The abdominal organs are found congested. Numerous small petechial haemorrhages or ecchymoses known as Tardieu Spots are seen under the serous membranes of various organs due to rupture of the capillaries caused by increased pressure in them. These are usually round, dark and well-defined, varying in size from a pin's head to a small lentil. They are found under the visceral pleurae, pericardium, endocardium, thymus, meninges of the brain and the cord, conjunctivae, epiglottis and even under the skin of the face, neck and eyelids. They are sometimes seen in deaths occurring from scurvy, pupura, haemophilia, bacterial endocarditis or coronary thrombosis. These must be distinguished from small postmortem haemorrhages in the conjunctivae or the skin of dependent parts due to gravity; usually they are more diffuse and even larger".

12. So far as the book 'Police : The Investigation of Violence' is concerned, the relevant portions are extracted below:

"Suspecious injuries: Persons who are alive at the time of exposure to fire are certain to inhale fumes that endanger life,for not only is the vital oxygen that is needed to maintain life being consumed in the course of combustion, but a dangerous gas,carbon monoxide, is being generated -- whatever is burning. Occasionally, as when celluloid or X-ray films burn, fumes of nitric oxide are also generated. Most charred victims of fire die of asphyxia (from lack of well

-oxygenerated air) and a high blood concentration of the fire- fume gas carbon monaxide--and it is comforting to know that, since a state of unconsciousness occurs at any saturation of 40% or over,they are unlikely to have experienced the excruciating pain of the burns that follow.

Detection of carbon monoxide in the blood is absolute proof that life was present at the time of the fire--that the victim was breathing. Indeed, if the fire was a slow smouldering or smoky one, soot particles are also found in the nostrils, the throat and the air passages, giving proof visible to even the tyro at autopsy. To these accustomed to carbon monoxide inhalation deaths, one other change is equally obvious. The blood in which carbon monoxide has accumulated is a characteristic cherry pink--a colour which shows in the livid stains in the skin and in samples of blood from any part of the body, especially when it is diluted. A drop of blood, so diluted, can be compared with a similar specimen taken by pricking the finger of any member of the investigating team.

When a fire is fierce from the start, the rapid lowering of the oxygen is the more important factor in causing asphyxia, but a smouldering fire will cause more smoke and the incomplete Page 33 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT combustion will create more carbon monoxide. The blood saturation may rise as high as 6 0% or more at death when a long period of exposure to a slow fire is responsible.

It is sometimes suggested also that burns to the live body can be easily distinguished from those to the dead tissues, but this is not so. The live skin reddens and blisters on scorching, and the hairs shrivel and curl on burning. But so does the dead skin, and so do the hairs. Heat causes the cuticle to wrinkle and blister, for the temperature can be high enough to "boil" the dead fluid in the skin; and adjacent blood vessels may expand from the heat, to give a very similar appearance to that when the tissues are living. When charring follows from more severe burning, of course, the only proof life lies in the finding of inhaled soot or absorbed carbon monoxide. Either is sounder proof than the skin changes.

Contraction: Penetrating heat may cook the muscles and cause them to shrink: the bulkier the muscle the greater the shrinkage, so that the stronger flexors of the arms and thighs exercise the greater "pull". The arms may flex, the hands clench and the thighs bend at the hip and the knee causing the well-known "pugilistic" attitude-suggesting that the victim might have been putting up a fight at the time of death. To make such an assumption can only reflect a lack of experience of fire injuries. This change can, of course, take place whether the body is dead or alive, but in either case it must not be made a cause for suspicion".

16. Thus, we are of the firm opinion that the deceased was murdered in the house by smothering and strangulation and attempt was made to remove dead body by putting ablaze and thereafter story has been created by close relatives that she has committed suicide by hanging herself.

17. We are also of the opinion that the oral evidence of Medical Officer and post-mortem notes prepared alongwith another panel Doctor cannot be discarded as he was involved in the another offences and particularly when surrounding circumstances establish the offence of culpable homicide.

Page 34 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

R/CR.A/303/2014 JUDGMENT

18. As far as contention raised by the learned advocate for the appellants about plea of alibi is concerned, hostile witnesses were asked certain question about presence of appellant No.1 at Dhrangadhra, however, as per section 106 the evidence Act, the burden lies upon the appellants to prove their alibi in which the appellants have miserably failed. In their evidence, the defendants could have examined those witnesses in their support, which have been referred in the cross-examination of Investigating Officer, but the defendants have not examined those witnesses in their support to prove their alibi.

19. In the case of Binay Kumar Singh (Supra), the Hon'ble Apex Court has held in para-22, 23 and 25, as under:

"22. We bear in mind that an alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

The question is whether A committed a crime at Calcutta on a certain date: the fact that on that date, A was at Lahore is relevant.

23. The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi.

The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the Page 35 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandey v. State of U.P.., State of Maharashtra v. Narsingrao Gangaram Pimple)

25. Of course, Shri U.R. Lalit, learned Senior Counsel has vehemently argued that the courts should have presumed the genuineness of all official records and accepted the proof as more than reasonably sufficient to discharge their burden. We shall not forget that presumption is only a rule in the realm of burden of proof and the reasons concurrently weighed with the two courts below for disbelieving the plea of alibi put forth by these two appellants are quite sturdy. At any rate, in an appeal by special leave granted under Article 136 of the Constitution, this Court would not be inclined to upset the findings of fact based on such weighty reasons, more so when the reasons advanced by both the courts in support of the finding appeal to us also."

Similar is a ratio laid down by the Hon'ble Supreme Court in similar case of Darshan Sinh (Supra) page no.17 of the said judgement.

20. In the case of Jayantilal Verma (Supra) ratio laid down by the earlier judgement is reiterated and is held that in Page 36 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022 R/CR.A/303/2014 JUDGMENT case when the incident has taken place in the house of the family members, including deceased residing together, it is duty of accused to explain the circumstances in which method and manner, the incident has taken place. The same is missing in the present case.

21. Considering the above all aspects, we are of the opinion that learned Trial Court has committed no error in convicting the appellants for the aforesaid offences and sentenced accordingly. Hence, the appeal fails and stands dismissed.

In view of dismissal of the main appeal, Criminal Misc. Application No.10 of 2018 also stands dismissed.

Sd/-

(A.J.DESAI, J) Sd/-

(A.C.RAO, J) DIPTI PATEL Page 37 of 37 Downloaded on : Wed Jan 12 06:52:22 IST 2022

Unlock Advanced Research with PRISMAI

Gujarat High Court