Bombay High Court
Vishnu Narayan Mondhe vs State Of Maharashtra Thr. Pso Of Ps ... on 16 April, 2019
Author: Vinay Joshi
Bench: Z. A. Haq, Vinay Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Criminal Writ Petition No. 1073/2017
PETITIONER:- Vishnu Narayan Mondhe,
Age 55 years, Occ. Agriculturist,
R/o. Village Tadap, Tal. Manora,
Dist. Washim.
VERSUS
RESPONDENTS: 1. State of Maharashtra
through PSO of PS Manora,
Dist. Washim.
2. Superintendent of Police,
Dist. Washim.
3. Superintendent of Police,
Crime Investigation Department (CID),
Dist. Washim.
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Shri P. W. Mirza, Advocate for petitioner.
Shri T.A. Mirza, APP for respondent Nos. 1 to 3.
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CORAM: Z. A. HAQ AND
VINAY JOSHI, JJ.
DATE OF JUDGMENT :- 16.04.2019
JUDGMENT (PER VINAY JOSHI, J.)
Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. ::: Uploaded on - 30/04/2019 ::: Downloaded on - 06/04/2020 18:27:40 :::
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2. Petitioner is seeking directions for further investigation in terms of Section 173(8) of The Code of Criminal Procedure in Crime No. 130/2015 registered at Manora Police Station, Dist. Washim. The petitioner urged to invoke inherent jurisdiction of this Court to do the complete and substantial justice for the cause which he has canvased.
3. The petitioner's son Nandkishore Mondhe went missing on 2nd October, 2015 whilst on the following day, his dead body was found lying in the public well of the Gram Panchayat. Initially, the proceedings under Section 174 of The Code of Criminal Procedure were registered by Police vide A.D. No. 39/2015. On 4 th October, 2015, petitioner lodged report (FIR) alleging that deceased - Nandkumar committed suicide due to incessant harassment meted out by accused Nos. 1 to 10 and accordingly, offence punishable under Section 306 read with Section 34 of The Indian Penal Code was registered vide Crime No. 130/2015.
4. It is the petitioner's case that he had dispute with accused Nos. 1 to 10 relating to the common dhura in between their adjoning agriculture lands. In that regard, petitioner had instituted Civil Suit bearing RCS No. 47/2013 against accused. It is alleged that the accused of Crime No. 130/2015 were harassing the petitioner as well as his son (deceased) for which the petitioner had filed complaints with various authorities. All the time, accused were threatening the petitioner and ::: Uploaded on - 30/04/2019 ::: Downloaded on - 06/04/2020 18:27:40 ::: 3 909jgcwp1073.17 .odt his son of dire consequences. It is alleged in FIR that due to harassment and threats meted out by accused, the deceased - Nandkumar committed suicide. The petitioner also expressed that Nandkumar was under constant fear that the accused may kill him and, because of such threat, he committed suicide.
5. It is petitioner's contention that as per postmortem notes, cause of death was "asphyxia due to drowning". The autopsy report does not show presence of water and/or any other foreign object present in the water, in the lungs/stomach of the deceased, therefore he expressed suspicion about the homicidal death of Nandkumar. It is contended that the findings recorded by the Medical Officer in autopsy report are inconsistent with the case of drowning and, therefore he urged to direct Investigating Officer to carry further investigation.
6. It is necessary to make brief reference of some background facts. Undisputedly, on 2nd October, 2015, petitioner's son - Nandkumar went missing and his dead body was found in a public well of Grampanchayat, Talap village. The petitioner filed report (FIR) expressing that due to abetment at the hands of accused, Nandkumar committed suicide. On the basis of said report, the Police registered Crime No. 130/2015 against accused for the offence punishable under Section 306 read with Section 34 of The Indian Penal Code. The accused had filed criminal application No. 911/2015 before this Court ::: Uploaded on - 30/04/2019 ::: Downloaded on - 06/04/2020 18:27:40 ::: 4 909jgcwp1073.17 .odt for quashing FIR No. 130/2015. After hearing both sides, this Court, vide order dated 9th August, 2016 was pleased to quash concerned FIR No. 130/2015. However, while parting with the order, this Court expressed that though FIR for the offence under Section 306 read with Section 34 of The Indian Penal Code was quashed, still it is open for the Investigating Officer to carry further investigation and if they find that the case under Section 302 of The Indian Penal Code is made out, they are at liberty to take appropriate steps. Meanwhile, the petitioner had filed Miscellaneous Criminal Application No. 158/2015 in the Court of Judicial Magistrate First Class, Manora seeking direction for further investigation. The said application was heard and vide reasoned order dated 10th November, 2016, it was rejected. In the wake of such background, the petitioner is seeking direction for further investigation. These are some admitted facts and mostly part of record.
7. We have gone through the copy of FIR dated 4 th October, 2015. It reveals that the petitioner has specifically referred about the harassment and threats given by the accused. He has stated that Nandkumar was scared due to threats and therefore, he committed suicide. The whole FIR alleges that the accused had abetted suicide by Nandkumar. It is pertinent to note that the petitioner has not expressed any suspicion about foul play. But, only stated about abetment to commit suicide meaning thereby the suicidal aspect was the only ::: Uploaded on - 30/04/2019 ::: Downloaded on - 06/04/2020 18:27:40 ::: 5 909jgcwp1073.17 .odt grievance of the petitioner.
8. Referring to the post-mortem notes, the petitioner canvased that there are no symptoms which could indicate a case of simple drowning. According to the petitioner, in case of death due to drowning, there has to be water or other contents like mud in the stomach/intestine of the deceased. Since no such symptoms of drowning are found, there is possibility of committing murder and throwing dead body into the well. Taking note of this submission, this Court vide order dated 10th January, 2019 directed Additional Public Prosecutor to file affidavit-in-reply with regard to investigation, in the nature of query if any made to the Medical officer. In compliance with the said order, the State has filed reply along with a query report of Dr. N. P. Nande. It is specifically stated by Dr. Nande that, in his opinion in case of death due to drowning, maximum changes take place in lung, trachea and nostrils and as water enters the respiratory system, death occurs. Most of the time drowning medium such as water or mud does not enter upto stomach and large intestine and small intestine. In maximum number of cases, patient die due to pharyngeal reflexes. Further he opined that there were no changes in stomach and large intestine and small intestine in the said case. The learned Advocate for the petitioner, by referring books of medical jurisprudence urged that further expert opinion is necessary as the symptoms of drowning are not ::: Uploaded on - 30/04/2019 ::: Downloaded on - 06/04/2020 18:27:40 ::: 6 909jgcwp1073.17 .odt present. In turn, this Court vide order dated 18 th March, 2019 directed respondents to call opinion of the Civil Surgeon, Washim on the post- mortem report and also on the points framed in earlier order. In response, panel of three Doctors including Civil Surgeon, Washim has considered the postmortem notes and opined that it is a case of death due to drowning.
9. The learned Advocate for petitioner invited our attention to the book of medical jurisprudence authored by Coks as well as Parmar and Parekh. He took us through the signs of drowning and finally contended that due to absence of water in the lungs and stomach, it is not a case of drowning. The petitioner's submission is solely based on the general parameters laid down in the books of medical jurisprudence and the normal characteristics of death by drowning. No doubt in cases of drowning, generally air passage and lungs are filled with froth, the lungs are over-distended and there is water in the stomach. The expert's panel including Civil Surgeon has considered said aspect and explained that such classical findings are seen in fresh bodies recovered from water, and as decomposition progresses get these findings get masked or obliterated gradually or may be lost during transportation. Column No. 12 of the postmortem notes bears specific reference that, there are signs of decomposition of body. Expert panel has considered the said aspect and ultimately concluded that, it is a case of death by drowning in ::: Uploaded on - 30/04/2019 ::: Downloaded on - 06/04/2020 18:27:40 ::: 7 909jgcwp1073.17 .odt following words:-
"After going through all available documents mention in ref no. 1 to 7 & evaluating the postmortem report what so ever positive finding present in decomposed body of deceased Vishnu Narayan Mondhe in colomn no. 13, 20 c, d & e of postmortem report are suggestive of and consistent with death due to drowning.
10. Besides theoretical proposition, there is nothing at the petitioner's side to support his contention. The expert panel has sufficiently explained that as body was decomposed, the usual signs of death by drowning may not be present. Merely on hypothetical or standard norms, report of expert panel which is specific one cannot be overturned. Twice material was verified by different Medical Officers and both concurrently concluded that it is a case of drowning. In the circumstances, we do not find any reason to discard the scientific opinion of expert panel, in view of some theoretical propositions. Pertinent to note that the explanation offered by the expert panel that the general symptoms would only be seen in fresh body are self explanatory which precludes nullifying of the report of expert. In that view, we do not find any merit in the criminal writ petition. Hence, criminal writ petition stands dismissed.
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11. Rule is discharged accordingly.
JUDGE JUDGE
Gohane
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