Gujarat High Court
Rakeshkumar Damodarji Acharya & 2 vs State Of ... on 29 April, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/2233/2009 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 2233 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the
Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RAKESHKUMAR DAMODARJI ACHARYA & 2....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Appellant(s) No. 1 - 3
MR P P MAJMUDAR, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR K.P. RAVAL, ADDITIONAL PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date :29/04/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The present appeal is at the instance of three convicts, Page 1 of 48 R/CR.A/2233/2009 CAV JUDGMENT one of those of the offence under Section 302 of the Indian Penal Code, and the other two of the offence under Section 323 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 29th October, 2009, passed by the learned Sessions Judge, Banaskantha at Palanpur, in Sessions Case No. 155 of 2006.
2. By the aforesaid order, the learned Sessions Judge found the appellant No.1 viz. Rakeshkumar Damodar Acharya guilty of the offence punishable under Section 302 of the Indian Penal Code, and consequently sentenced him to suffer life imprisonment with fine of Rs. 1,000/- and in default of payment of fine, further simple imprisonment for the period of 3 months. The learned Sessions Judge also found the appellant No.1 guilty of the offence under Section 323 of the Indian Penal Code, and consequently sentenced him to suffer rigorous imprisonment for the period of one year with fine of Rs. 1,000/- and in default of payment of fine, further simple imprisonment for the period of 3 months.
3. The learned Sessions Judge found the appellant Nos. 2 and 3 guilty of the offence punishable under Section 323 of the Indian Penal Code, and consequently sentenced them to suffer rigorous imprisonment for the period of one year with fine of Rs. 1,000/- and in default of payment of fine, further simple imprisonment for the period of 3 months.
4. It may not be out of place to state at this stage that the charge against the accused-appellants as framed by the trial Court Exh.6 was one of the offence under Section 302 or in the alternative, 304-B read with Section 114 of the Indian Penal Page 2 of 48 R/CR.A/2233/2009 CAV JUDGMENT Code and of the offence under Sections 3 and 4 of the Dowry Prohibition Act. However, the trial Court found that no case of dowry death was made out against any of the accused- appellants including the offence under Sections 3 and 4 of the Dowry Prohibition Act, and accordingly, all the three appellants came to be acquitted of such charges. However, the appellant No.1 came to be convicted for the offence of murder, whereas the appellant Nos. 2 and 3 came to be convicted for the offence under Section 323 of the Indian Penal Code.
5. The case of the prosecution:
5.1 The deceased Shaluben was married to the accused-
appellant No.1 viz. Rakeshkumar Damodar Acharya, about three years before the death of the deceased. After the marriage, the appellant No.1 and the deceased started residing at Deesa. The appellant Nos. 2 and 3 are the father- in-law and the mother-in-law of the deceased respectively. It is the case of the prosecution that after the marriage, the accused No.1 started demanding money from the deceased, for purchase of a car and for constructing a house. On account of such demands, the accused No.1 started causing physical and mental harassment to the deceased. On 4th June, 2006, at around 19:00 hrs., while at home, the accused No.1 and his parents i.e. the accused Nos. 2 and 3, assaulted the deceased with fisticuffs on the ground that the deceased was unable to cook good food and was also unable to bring money from her parental home for the purpose of buying a car and construction of a house. It is the case of the prosecution that the accused No.1, with an intention to kill the deceased, sat on her chest and pressed her neck and thereby throttled the deceased to Page 3 of 48 R/CR.A/2233/2009 CAV JUDGMENT death.
5.2 The P.W 2, Ganpatlal Banaram, father of the deceased, lodged the first information report Exh.17 on 5th June, 2006, at 7.30 P.M, stating that the deceased was his daughter and had got married with the accused No.1. He has stated that he is a resident of Jodhpur, Rajasthan. The P.W 2 has also stated that his second daughter, viz. Nituben has been married with the brother of the accused No.1, and all together were residing in one house. He has further stated that as and when the deceased used to come to their house, she used to complain regarding the harassment at the end of the accused persons. He has stated that on the previous day at around 8' O Clock in the night, his daughter Nitu called up her brother Purshottam on his mobile informing that Shalu had been killed. Such information thereafter was conveyed by Purshottam to the P.W
2. On receipt of such information, the P.W 2, his son Purshottam and others informed the Pratapgadh Police Station at Rajasthan. He has stated that they all requested the Police Officer at Pratapgadh Police Station, Rajasthan to inform the Deesa Police Station at Gujarat to preserve the dead-body till they reach Deesa. He has further stated that they all left in three vehicles for Deesa and reached at the matrimonial home of his daughter Shalu at around 5' O Clock in the morning. Thereafter, along with his second daughter Nitu, they all went to the Deesa Police Station. The Police Officer at Deesa Police Station informed them that the dead-body of Shalu had been sent to the Government Hospital at Deesa for postmortem and accordingly, they all went to the Hospital, where they found the dead-body of Shalu in the postmortem room. It is further stated that the marks of beating were visible on the dead-body Page 4 of 48 R/CR.A/2233/2009 CAV JUDGMENT and on inquiring with Nitu as to what had happened, Nitu in turn told them that on the previous day at around 7 ' O Clock in the evening, the father-in-law and the mother-in-law i.e. the accused Nos. 2 and 3 had come at their house and at that point of time, the accused No.1 complained that the deceased was not preparing good food and was not even serving the family members well. Nitu also informed her father, the P.W 2 that the accused No.1 also stated to the deceased that she was not able to bring any money from her parents' place and saying so, all the three accused persons gave fisticuffs to the deceased. It has been further stated in the complaint that Nitu also informed the P.W 2 that the accused No.1 pounced on the chest of the deceased and pressed her neck, thereby causing her death. It is stated that whatever was narrated by Nitu was further confirmed discretely through other sources and as they found substance in what was conveyed by Nitu, the P.W 2, being father of the deceased, decided to lodge the complaint at the Police Station.
5.3 It appears that on 5th June, 2006, the statement of the P.W 2 was recorded by the Deputy Superintendent of Police, Exh.18, wherein the P.W 2 stated that his son Purshottam had received a phone call regarding the death of Shalu. It is further stated in the said statement Exh.18 that he would not like to file any complaint until the postmortem examination was performed and report was received, as he had a doubt as regards the cause of death of his daughter Shalu.
5.4 On the complaint being lodged, the investigation had commenced. The inquest panchnama of the dead-body Exh.24 was drawn in presence of the panch witnesses, the Page 5 of 48 R/CR.A/2233/2009 CAV JUDGMENT panchnama of the scene of offence Exh.26 was drawn in the presence of the panch witnesses, the dead-body of the deceased was sent for postmortem examination and the postmortem report Exh.14 disclosed the cause of death as asphyxia due to strangulation.
5.5 It appears that after the incident, the accused No.1, as the husband of the deceased, had informed the Police regarding the same and such information was registered as accidental death vide Exh.43. The muddamal articles collected in the course of investigation were sent to the Forensic Science Laboratory for chemical analysis. The statements of various witnesses were recorded. Finally, the charge-sheet was filed against the accused persons in the Court of the learned Chief Judicial Magistrate, Deesa.
6. As the case was exclusively triable by the Sessions Court, the learned Chief Judicial Magistrate committed the case to the Sessions Court under Section 209 of the Code of Criminal Procedure.
7. The Sessions Court framed the charge against the accused persons at Exh.6 and the statements of the accused persons were recorded. The accused persons did not admit the charge and claimed to be tried.
8. The prosecution adduced the following oral evidence in support of its case.
Page 6 of 48 R/CR.A/2233/2009 CAV JUDGMENTSr.No Particulars Exh.No. 1 Deposition of Dr. Bhikhubhai Ramanbhai Akediwala-P.W 1 13 2 Deposition of the complainant Ganpatlal Acharya P.W 2 16 3 Deposition of Nituben Sanjaykumar Acharya P.W 3 21 4 Deposition of Purshottambhai Acharya P.W 4 22 5 Deposition of Shankerlal Umalal Acharya P.W 5 23 6 Deposition of Amirji Bhaichandji Thakor, P.W 6 25 7 Deposition of Bhawansinh Shivsinh Barad, P.W 7 27 8 Deposition of Bharatsinh Madhubhai Vaghela P.W 8 30 9 Deposition of Mohammadkhan Sherkhan, PSO P.W 9 34 10 Deposition of Gulamahmed Gulam Hyder, Scientific Officer, PW 10 37 11 Deposition of Ashwinbhai Gangaram Chauhan, P.W 11 39 12 Deposition of Chamanlal Sendhabhai, ASI, P.W 12 42 13 Deposition of Hathibhai Fatabhai Korat, P.W 13 47
9. The following pieces of documentary evidences were adduced by the prosecution:-
Sr.No Particulars Exh.No. 1 postmortem report 14 2 Yadi from Police officer to Medical Officer for P.M 15 3 Complaint 17 4 Statement of Ganpatbhai before Dy.S.P prior to FIR 18 5 List of documents produced by the accused 19 & 20 6 Inquest report 24 7 Scene of offence panchnama 26 8 Report to Dy. S.P about AD case 28 9 Yadi to Executive Magistrate for inquest 29 10 Map of the scene of offence 32 11 Report of FSL 38 12 Report to register FIR 40 13 Report made by the accused No.1 43
10. The defence adduced the following oral evidence in support of its case.
Sr.No Particulars Exh.No. 1 Statement of Gomiben Dineshbhai Raval, D.W 1 53 2 Statement of Chandrikaben Sureshbhai Mali, D.W 2 54 Page 7 of 48 R/CR.A/2233/2009 CAV JUDGMENT 3 Statement of Ajmalsinh Jawansinh Parmar, D.W 3 55 4 Statement of Dashrathlal Manilal Patel, D.W 4 58 5 Statement of Arjunbhai Ishwarlal Raval, D.W 5 61 6 Statement of Sanjaykumar Damodarbhai Acharya, D.W 6 63
11. The following pieces of documentary evidences were adduced by the defence:-
Sr.No Particulars Exh.No. 1 Statement of the accused 50 2 Application for summons and list of witnesses 51 3 Bank statement of monthly recurring account 56 4 Details of landline phone No. 228944 59 5 Call details 60 6 Certificate of BSNL for mobile of Rakeshkumar Acharya 64 7 Certificate of Dr. Kalpesh Talati of Aakar Hospital 65
12. After completion of the oral as well as the documentary evidences of the prosecution as well as the defence, the statements of the accused persons under Section 313 of the Code of Criminal Procedure was recorded, in which the accused persons stated that the complaint was a false one and the case was not that of homicidal death, but one of suicidal.
13. At the conclusion of the trial, the learned trial Judge convicted the accused persons for the offence punishable under Sections 302, 323, read with Section 114 of the Indian Penal Code, and sentenced them as stated hereinbefore.
14. Being dissatisfied, the accused appellants have come up with the present appeal.
15. Submissions on behalf of the accused-appellants:
Page 8 of 48 R/CR.A/2233/2009 CAV JUDGMENT15.1 Mr. A.D. Shah, the learned counsel appearing for the accused-appellants vehemently submitted that the trial Court committed a serious error in holding the accused-
appellant No.1, the husband of the deceased, guilty of the offence of murder, whereas the accused Nos. 2 and 3, the in- laws of the deceased, of the offence under Section 323 of the Indian Penal Code. Mr. Shah submitted that the trial Court failed to appreciate an important question of fact that there was a gross delay of one day in lodging the FIR pointing towards the false implication of the appellants merely on suspicion. Mr. Shah laid much emphasis on the fact that according to the case of the prosecution, on the day of the incident i.e. on 4th June, 2006, the P.W 2, original complainant and father of the deceased was informed about the incident and they all had reached Deesa at Gujarat on 5th June, 2006 early in the morning at around 5' O Clock. Thereafter, they all had approached the Superintendent of Police at Deesa and had stated before the Superintendent of Police that he would lodge the FIR only after receipt of the postmortem report. Mr. Shah submits that if the entire incident as alleged by the prosecution had already been narrated by Nitu, the sister of the deceased and second daughter of the P.W 2, then there was no reason for the P.W 2 to wait till the receipt of the postmortem report. Mr. Shah submits that it is suggestive of the fact that the P.W 2 had no confidence on the version of Nitu, as narrated by her before him.
15.2 Mr. Shah submits that the medical evidence on record does not rule out the possibility of suicide on the part of the deceased and the defence witnesses who have been Page 9 of 48 R/CR.A/2233/2009 CAV JUDGMENT examined corroborates to a substantial extent the theory of suicide. Mr. Shah submits that at the time of the incident, the accused No.1 was not even present at the house and was informed regarding the incident by his brother on mobile. Mr. Shah submits that such information conveyed by the brother of the accused No.1 on his mobile is corroborated by the printout of the land-line phone Exh.60.
Mr. Shah, in such circumstances submits that the appeal merits consideration and the order of conviction and sentence passed by the Sessions Judge deserves to be set aside.
16. Submissions on behalf of the State:
Mr. K.P. Raval, the learned Additional Public Prosecutor has vehemently opposed this appeal. Mr. Raval submits that the trial Court committed no error in finding the accused No.1 guilty of the offence of murder, whereas the accused Nos. 2 and 3 guilty of the offence under Section 323 of the Indian Penal Code. Mr. Raval submits that there is no reason to disbelieve the evidence of the P.W 3 Nituben, the sister of the deceased, who is the eyewitness to the incident. Mr. Raval submits that the medical evidence on record also suggests the theory of homicidal death as advanced by the prosecution. Mr. Raval submits that the trial Court rightly rejected the oral evidence of the defence witnesses.
In such circumstances referred to above, Mr. Raval prays that there being no merit in this appeal, the same may be dismissed.Page 10 of 48 R/CR.A/2233/2009 CAV JUDGMENT
17. Oral evidence on record:
The P.W 1 Dr. Bhikhubhai Ramabhai Akediwala, in his evidence Exh.13 has deposed that on 5th June, 2006, he was on duty at the Deesa Government Hospital as a Medical Officer. At that point of time, a deadbody of a lady viz. Shaluben Rakeshkumar was brought for postmortem by the Police Sub-Inspector of Deesa Police Station. He has deposed that the postmortem of the dead body of the deceased was performed on 5th June, 2006 at around 11.45 hours and was completed at 13.30 hours. He has deposed that the following was noted at the time of performing the postmortem:-
• Deadbody normal, the face is congested, marked with petechial. Both eyes partly closed, petechial haemorrhages at forehead and upper eyelids, the conjuctival haemorrhages also present. The mouth is partly opened the tongue is swollen and protruded. Bleeding from mouth, nose and ears is present.
• Stool passed. No visible injury mark on external genitals.
• The ligature mark is transverse, not completely encircling the neck and crossing the mid line on the thyroid cartilage. The base of ligature mark is soft and reddish in colour starting right lateral aspect of neck 7 cms away from midline, come to midline on the thyroid cartilage to left lateral aspect of neck and sight upwards size 14 x 1cms and not marked by deep.
• Diffused swelling on neck laterally on right side 3 x 2 x 1/2 cmts.
• Abrasion on left sub mandibular area, bluish red in colour oval in shape and size 1 1/2 x 1 cmts.
• Fracture of thyroid cartilage • No bony injury of skull bones, but fracture of thyroid Page 11 of 48 R/CR.A/2233/2009 CAV JUDGMENT cartilage both superior horns.
• Brain normal in size bran and meninges are congested and the petechial haemorrhages present.
• No ribs fracture • Larynx, trachea and bronchi are congested and contain frothy bloody stain mucus • Both lungs are marked by congested larger sub pleural haemorrhages present.
• Congested right side of heart is full of dark blood and inside of heart is empty.
He has deposed that the cause of death was asphyxia due to strangulation. In his cross-examination, he has deposed that the ligature mark would not completely encircle the neck in cases of hanging, whereas in cases of strangulation by ligature, there would be possibility of a ligature encircling the neck completely. He has further deposed that the ligature mark is ordinarily found below the thyroid cartilage in case of strangulation, but in the present case, the ligature mark was over the thyroid cartilage. He has also deposed that in cases of hanging, ordinarily dribbling of saliva from the mouth is to be seen, whereas in cases of manual strangulation or throttling, such dribbling of saliva from the mouth is not to be seen. He has deposed that at the time of postmortem nothing regarding dribbling of saliva from the mouth was noted, however, he deposed that in the inquest panchnama, it has been stated that there was dribbling of saliva from the mouth of the deceased. He has deposed that in the inquest panchnama, it has not been stated that there was any bleeding from the mouth, ears and nose. In reply to the Page 12 of 48 R/CR.A/2233/2009 CAV JUDGMENT question put by the Court, he has deposed that in case of a female, at the time of pressing of the throat, if such pressure gets obstructed by her own hair behind the neck, then in such case there may not be a mark of ligature completely encircling the neck.
18. The P.W 2 Ganpatlal Banalal Acharya, the father of the deceased, in his evidence Exh.16 has deposed that on 4th June, 2006, after returning home from work at around 8'O Clock, he received a phone call from his son informing him that Nitu had called him up stating that Shalu had been killed by her husband and her in-laws by pressing her neck. He has deposed that on receipt of such information, he had requested the Superintendent of Police, Jodhpur to inform the Police Station at Deesa that the deadbody should not be disposed of till they reached Deesa. He has deposed that the P.W 3, Nitu, his second daughter married to the brother of the accused No.1 had informed him that the accused No.1 had picked up a quarrel with Shalu in the afternoon at around 2'O Clock with regard to cooking of vegetables. Thereafter, in the evening when the in-laws came at the house of Shalu, once again there was an altercation regarding paying respects to the in-laws by touching their feet. He has deposed that Nitu also conveyed to him that when quarrel with the in-laws was going on, the accused No.1 was sleeping in the house and he also joined his parents in assaulting the deceased. It was further conveyed by Nitu to the P.W 2 that she had tried to save Shalu, but at that time Shalu went away running in a room. She was followed by her husband Rakesh and the door of the room was closed from inside. Thereafter, the accused No.1 started beating Shalu. The P.W 2 has further deposed that it was told Page 13 of 48 R/CR.A/2233/2009 CAV JUDGMENT to him by Nitu that in the meantime, Sanjay, the brother of the accused No.1 came running from outside. Nitu and Sanjay both tried to break open the door and as a result of force exerted, the door got opened. No sooner had the door was broken open, than Nitu saw Rakesh sitting on the chest of Shalu and pressing her throat with his hands. Nitu and Sanjay both separated Rakesh from Shalu and Shalu in a moment thereafter became calm. He has further deposed that it was told to him by Nitu that thereafter, Sanjay and Nitu both together took Shalu to the hospital and thereafter, the in-laws and the husband of the Shalu also reached the hospital. In his cross-examination he has deposed that after seeing the deadbody of Shalu, he had inquired with his daughter Nitu regarding the incident. He has deposed that thereafter, Nitu had conveyed to him all the facts in details regarding the incident. He has also deposed that although all the facts regarding the incident were disclosed by Nitu before him, yet no complaint was lodged by him upto 7.30 in the evening.
19. The P.W 3, Nituben Sanjaykumar Acharya, in her evidence at Exh.21 has deposed that the deceased Shalu was her elder sister and was married to the accused No.1. She has deposed that she was married to Sanjaykumar Acharya, the younger brother of the accused No.1. She herself and Shalu both were residing in one house as they had married to the two brothers. She has deposed regarding the incident and her narration is the same as stated in the evidence of the P.W 2. The entire evidence of the P.W 2 is based on the facts, which were disclosed by Nitu, the P.W 3, and therefore, they are not reiterated.
Page 14 of 48 R/CR.A/2233/2009 CAV JUDGMENT20. The P.W 4, Purshottam Ganpatlal Acharya is the brother of the deceased. This witness, in his evidence Exh.22 has deposed that on 4th June, 2006 i.e. on the date of the incident, he was at his shop. At around 8'O Clock, he received a phone call from his sister Nitu from Deesa, on his mobile No. 9414672374. He was informed by Nitu that Shalu had been killed by her husband and in-laws. The entire evidence of the P.W 4 is based on the facts which were conveyed to him by Nitu and therefore, they are not reiterated.
21. One other important witness whose evidence deserves consideration is the P.W 11, Ashwinbhai Gangaram Chauhan. This witness, at the relevant point of time, was the Deputy Superintendent of Police at Deesa. This witness, in his evidence Exh.39 has deposed that on 5th June, 2006, the Deesa City Police Station was informed about the accidental death and such accidental death was registered as AD No. 13 of 2006. The investigation of AD 13 of 2006 was taken over by this witness from PSI Shri B.S. Barad. This witness has deposed that he had visited the place of occurrence and had recorded the statements of various people residing within the vicinity of the house of the accused where the incident had occurred. He has deposed that at that time, the father of the deceased, the P.W 2 was also present and he had also inquired with the father of the deceased. This witness has deposed that he was told by the P.W 2, the father of the deceased, that he would give his statement only after the receipt of the postmortem report, and after inquiring about the incident with his daughter Nitu. In his cross-examination, the P.W 11 has deposed that the AD was registered through the husband of the deceased i.e. the accused No.1.
Page 15 of 48 R/CR.A/2233/2009 CAV JUDGMENT22. The accidental death report lodged by the accused No.1 as the husband of the deceased has been admitted in evidence vide Exh. 43.
23. We shall now look into the oral evidence of the defence witnesses. Six witnesses were examined on behalf of the accused persons as defence witnesses, viz. the D.W 1 Gomiben Dineshbhai Raval, Exh.53, the D.W 2 Chandrikaben Sureshbhai Mali, Exh. 54, the D.W 3 Ajmalsinh Jawansinh Parmar, Exh. 55, the D.W 4 Dashrathlal Manilal Patel, Exh. 58, the D.W 5 Arjunbhai Ishwarlal Raval, Exh. 61 and the D.W 6 Sanjaykumar Damodarbhai Acharya, Exh.63 [brother of the accused No.1]. The evidence of the defence witnesses would suggest that on the date of the incident at around 7'O Clock in the evening, on hearing shouts and commotion at the house of the accused persons, the neighbours who have been examined as the defence witnesses, rushed at the house of the accused No.1. The defence witnesses have deposed that at that time they were told by Nitu that her sister Shalu had closed herself up in the room and that they all should help her in opening the room. All those persons who had rushed to the house of the accused No.1, broke open the door by exerting force and found Shalu, hanging from the ceiling fan having strangulated herself with a saree. It also appears from the evidence of the defence witnesses that Sanjay, the brother of the accused No.1 had brought down Shalu from the ceiling fan with the help of the D.W 5, Arjunbhai.
24. Findings of the trial Court:
Page 16 of 48 R/CR.A/2233/2009 CAV JUDGMENT24.1 According to the trial Court, the medical evidence on record, more particularly the opinion of the P.W 1 Dr. Akediwala as an expert witness, completely rules out the theory of suicide by hanging as advanced by the defence. On the contrary, in the view of the trial Court, the medical evidence on record confirms the theory of homicidal death by strangulation, as advanced by the prosecution.
24.2 The oral version of the P.W 3, Nitu, the sister of the deceased that the accused No.1 had pressed the neck of the deceased by sitting on the chest of the deceased gets corroboration from the medical evidence on record.
24.3 The evidence of the defence witnesses examined by the accused does not inspire any confidence as they appear to have been examined by the accused because of good relations with them and with a view to create a false defence.
25. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the trial Court committed any error in finding the accused No.1 guilty of the offence of murder of his wife Shalu by accepting the theory of homicidal death advanced by the prosecution, while rejecting the theory of suicide committed by the deceased by hanging herself from a ceiling fan tying a saree around her neck.
26. Since we are dealing with the question of death due to asphyxia, we deem it necessary to explain the term asphyxia Page 17 of 48 R/CR.A/2233/2009 CAV JUDGMENT including suffocation, hanging and strangulation:-
26.1 What is asphyxia?
Asphyxia may be defined as primarily a state, or series of states, induced by an oxygen supply short of tissue needs. There are two forms of asphyxia. In the first form there is gasping for breath and marked cyanosis with retention of carbon dioxide and depletion of oxygen. In the second form there is no cyanosis, the asphyxia being due to depletion of oxygen, or anoxaemia, without retention of carbon dioxide. Shallow rapid breathing is present which causes the anoxaemia and also an excessive elimination of carbon dioxide, with resultant failure of the respiratory centre. In this form there is no sign of respiratory distress.
Asphyxia may be produced in many ways, including the following:-
Occlusion of the air-passages by foreign bodies, the effects of scalding or corrosives, angioneurotic oedema, acute inflammation, membranous exudations, acute oedema of the glottis, laryngeal spasm, tumours, and abscesses.
Impediment to respiratory function by pressure on the chest wall, for example, by falls of debris, and in lift and pit- cage accidents.
Strangulation, suffocation, hanging, throttling, drowning, and the inhalation of irrespirable gases.Page 18 of 48 R/CR.A/2233/2009 CAV JUDGMENT
Paralysis of the respiratory nerves or muscles, or of the respiratory centre from injury or disease, or from the action of certain poisons, for example, morphine and barbiturates.
From causes operating from the lungs, or pulmonary circulatory system, for example, lung diseases, pleural effusions, pneumothorax, and pulmonary embolism.
26.2 What is suffocation?
The term suffocation embraces the causes by which death is produced by impediment to respiration, not due to pressure externally and immediately applied to the windpipe. It does not, therefore, include deaths by hanging, strangulation, or throttling, but comprises deaths by smothering or overlaying, those due to foreign bodies in the larynx, trachea, and bronchi, and those due to irrespirable gases. Suffocation may, therefore, result from natural disease, accident, or violence suicidally or homicidally applied.
Death by suffocation may be caused:-
By prevention of the action of the muscles of respiration. By obstruction to the entrance of air through the mouth and nostrils.
By obstruction of the larynx, trachea, or bronchi. By inhalation of irrespirable gases.
26.3 What is hanging?
Hanging may be defined as that form of death which is Page 19 of 48 R/CR.A/2233/2009 CAV JUDGMENT caused by suspension of the body by a ligature which encircles the neck, the constricting force being the weight of the body. A frequent method is the use of a running noose. The proximate cause of death is asphyxia or comato-asphyxia.
The time occupied in the process of death depends chiefly upon two factors, the severity of the constricting force and the point of application of that force.
The amount of the constricting force depends upon whether or not the body is completely suspended. Complete suspension is not essential since the partial weight of the body is adequate for the purpose. Persons have succeeded in hanging themselves although their feet were in contact with the floor. Only a slight degree of constriction of the neck is required to cause eventual death. When, however, the entire body is suspended, greater weight is thrown upon the ligature and a greater constricting force results. When such a degree of force is applied to the neck, death supervenes more rapidly than in the case of partial suspension with a diminished degree of constrictive force. When the ligature is not tight, death may ensure slowly, chiefly from the effects of coma induced by disturbance of the cerebral circulation as the result of pressure on the vessels in the neck. The point of application of the force is an important factor not only in the time occupied in dying, but in the subsequent postmortem appearances.
26.4 What is strangulation?
Strangulation may be defined as that form of death which is caused by a constricting force applied around the neck by Page 20 of 48 R/CR.A/2233/2009 CAV JUDGMENT means of a ligature without suspension of the body. Throttling, or manual strangulation, is that form of death which is caused by compression of the throat, the constricting force being the fingers and the hand or hands of the assailant. Ordinary strangulation may be caused accidentally, suicidally, or homicidally. The constricting mark is usually found at a lower level on the neck than in hanging, but may be found at any level, and frequently direct pressure is exerted upon the larynx. The mark more or less completely encircles the neck transversely. In some cases it may be continuous, but in others it may be invisible at some part of the neck. The nature of the ligature employed plays a prominent part in this respect. The degree and character of injury to the deeper tissues of the neck are dependent on the amount of violence used in the application of the ligature. The underlying muscles frequently show some degree of extravasation, due to rupture of the capillary vessels. The laryngeal cartilages and trachea are usually intact, but in some cases, especially homicidal cases, fractures of these structures are present. Fracture of the hyoid bone is unusual. The injuries in homicidal strangulation are usually more extensive than in accidental or suicidal cases, due to the fact that an assailant frequently uses more force than is necessary to cause the death of his victim. It is in such cases that extensive deep-seated injury is likely to be found. When a ligature is suddenly placed around the neck of a person and pulled tightly, the assaulted person is rendered unconscious very quickly and is unable to offer much resistance. [See Medical Jurisprudence & Toxicology by Glaister XI Edition)
27. It appears that the conviction of the accused No.1, recorded by the trial Court is substantially based on the Page 21 of 48 R/CR.A/2233/2009 CAV JUDGMENT medical evidence on record. It also appears that the trial Court has placed implicit reliance on the opinion of the P.W 1 as an expert witness and the opinion of the P.W 1 is that the death was caused by strangulation i.e. by pressing the neck of the deceased. The trial Court has completely ruled out the possibility of strangulation to be suicidal. This is where it appears that the trial Court fell in an error by considering only two probabilities, (i) strangulation and (ii) hanging. Although the medical opinion in this case is of strangulation by homicide, yet if the entire medical evidence is looked into in details, it does not rule out the theory of suicide by hanging, as advanced by the defence.
28. Before we proceed further, it would be relevant to quote below the expert opinion on suicidal death and homicidal death:-
28.1 Noted author Dr. C. K. Parikh in "Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology" Sixth Edition in this respect offered expert opinion as under:
"Suicide, homicide, or accident : Suicidal strangulation is not common although instances have been known. To effect suicide by ligature requires the employment of some means (e.g., a tourniquet) whereby the ligature is kept tight independently of any muscular effort on the part of the suicide. In suicide, the ligature should be found in situ and the body should be free from other signs of violence or marks of struggle. The knot is usually in front.
Homicidal strangulation is a common form of murder. In fact, strangulating should be assumed to be homicidal until the contrary is proven to be more likely under the circumstances. A suspicion of homicide should arise when (a) knot is tied on the back of neck, (b) mouth is gagged, (c) limbs are tied, (d) other injuries are found on the body, (e) signs of struggle are present, and (f) in case of female, if she is sexually assaulted; and in such a case, material that is readily available at hand, Page 22 of 48 R/CR.A/2233/2009 CAV JUDGMENT e.g., a nylon stocking, pantyhose, or the scarf of the victim, is used as a ligature. Tearing of clothes may be seen."
28.2 Likewise H.W.V.Cox in his book "Medical Jurisprudence and Toxicology" offered expert opinion as under :
"(d) Strangulation - Strangulation by a ligature is quite possible in a suicidal manner, the suicider being able to wrap several turns of rope or wire around his neck and tie a complicated knot before unconsciousness occurs. Sometimes a "Spanish windlass" devise is used in which a loose ligature is tightened up by inserting a stick under the ligature and twisting until it becomes tight. This is quite possible in suicide but of course could also be a homicide. Manual strangulation is virtually impossible as a suicide act, though one or two cases have been described. The mechanism must of necessity be the sudden cardiac arrest type of death due to pressure on the carotid arteries, as it is obviously impossible to maintain pressure long enough to cause florid asphyxial changes with petechial cerebral anoxia would cause the hands to fall limply from the neck, with the return of consciousness to the intended suicide."
28.3 Dr. Modi in "Medical Jurisprudence and Toxicology"
Twenty-third edition offered expert opinion in this regard as under :
"(ii) Whether the Strangulation was Suicidal, Homicidal or Accidental. Suicidal strangulation is not very common, though sometimes cases are met with. In these cases, some contrivance is always made to keep the ligature tight after insensibility supervenes. This is done by twisting a cord several times round the neck and then tying a knot, which is usually single and in front or at the side or back of the neck, by twisting a cord tightly by means of a stick, stone or some other solid material, or by tightening the ends of a cord by tying them to the hands or feet or to a peg in a wall or to the leg of bed. In such cases, injuries to the deep structures of the neck and marks of violence on other parts of the body are, as a rule, absent. It is not possible for anyone to continue a firm grasp of the throat after unconsciousness supervenes, hence throttling by the fingers cannot possibly be suicidal. Binnar records the case of a woman, aged 40 years, who committed suicide by throttling. She was suffering from melancholia and was found dead, crouched in her bed with both hands compressing her Page 23 of 48 R/CR.A/2233/2009 CAV JUDGMENT throat; the elbows were supported on the knees, and the back leaned against the wall; there were marks of her fingernails on both sides of the throat."
28.4 Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth Edition, 1984 by Keith Mant, Vol. 1 stated at p. 282 that:
"asphyxia being a condition in which there is an inadequate supply of oxygen to the tissues. It may be defined as a state in which the body lacks oxygen because of some mechanical interference with the process of breathing. At p. 283 it was further stated that cyanosis indicates the blue colour of the skin, mucous membranes and of internal organs, notably spleen, liver and kidneys. The capillary dilation that accompanies a reduction in oxygen tension promotes stasis and therefore a vicious cycle of suboxygenation of the blood commences. The return of blood to the heart is diminished. The resultant impaired oxygenation leads to further capillary dilation, further stasis, with deepening cyanosis ...... Probably results from a combination of stasis and hypoxia. Fluid exudes into the tissue spaces.
At p. 286 it was also stated of the distinction between suffocation and strangulation that conditions associated with mechanical asphyxia include suffocation where the interference with the process of breathing is at the level of the nose or mouth; strangulation where there is compression of the neck, either by (a) the human hand (manual strangulation or throttling); (b) a ligature. In paragraph 6 he stated that in each of these categories the obstructive process at the various level will result in the development of the symptoms and the signs associated with asphyxia previously described. At p. 287 of general features of asphyxia, it was stated that the head and face may show intense congestion and cyanosis with numerous petechiae. Blood exudes from the mouth and nose. Blood tinged frothy fluid is present in air passages. Mucus may be found at the back of the mouth and throat. The lungs which are of particular interest, usually show in addition to congestion of inter-alveolar capillaries, the presence of the oedema fluid in the alveoli, areas of haemorrhage and collapse with intervening emphysema.......
Regarding post-mortem appearances in strangulation at p. 305 it was stated that a careful search in suitable mortuary conditions will usually reveal either external or internal evidence of the area where the construction has occurred. At p.Page 24 of 48 R/CR.A/2233/2009 CAV JUDGMENT
306 the General Internal appearances, it is stated that internally the air passages contain fine froth, often blood stained. The lungs are congested with subpleural petechiae. Mycroscopically there is usually intense inter-alveolar congestion with haemorrhages of varying size, fluid in the alveoli, areas of collapse and intervening areas of ruptured alveoli. The air passages often contain large areas of desquamated respiratory type epithelium, red blood cells and fluid. The remaining organs show only congestive changes.
These conditions vary because of the circumstances that the assailants usually employ considerably more force than would appear to be necessary to ensure that death takes place. In general terms the mark of the neck is usually of the same width as the constricting object and the depth is about half its diameter. Regarding finger-nail marks it was stated that in manual strangulation the marks of bruising will be on the front or sides of the neck, chiefly about the larynx and about it. Marks of pressure of fingers may, however be slight. The distribution of these marks when present will vary with the circumstances, and factors which will affect it include the relative position of the assailant and victim, the manner of gripping the neck, being greater if the grip is shifted or has been reapplied if the victim struggles, and the degree of pressure. The solid tissues of the neck are of extreme importance in cases of suspected strangulation. The solid structures comprise the hyoid bone and the cartilages forming the larynx. If the body is found to have died with marks on the neck which indicate manual strangulation and this is subsequently confirmed in the mortuary and laboratory the case must be regarded as a killing by another person. It is inconceivable that anyone could die from compression of the neck by his own hand because loss of consciousness would cause relaxation of the constricting fingers.
28.5 In Gradwohl's Legal Medicine, Second Edition in Chapter 18 under the caption interpretation of Post-Mortem Appearances in Death from Respiratory Obstruction and Compression of the Neck, at p. 336 it was stated that:
"Systemic and pulmonary congestion and dilatation of the heart are classically described as signs of an asphyxial death. At p. 337 regarding hyoid bone it was stated that two mechanisms have been suggested in which the hyoid bone may be fractured: from direct lateral compression and from Page 25 of 48 R/CR.A/2233/2009 CAV JUDGMENT indirect violence. Direct lateral compression is one mechanism in manual strangulation, when pressure is applied under the angles of the jaw."
28.6 Medical jurisprudence by Raju and Jhala in Chapter XXV death from asphyxia and death from drowning at p. 226 stated that:
"the heart in asphyxia, specifically right chambers, is always found full of dark venous blood. This is important to note as usually with death, blood disappears from the heart. The venous system of circulation, because of back pressure, is always found distended with blood. The blood in heart and veins is not only dark blue but also liquid and remains liquid....... The internal organs and mucous membrane also present the general signs of congestion...... This congestion has to be looked for and has to be found in all cases of genuine asphyxia."
28.7 In Medical jurisprudence and Toxicology, 13th Edn. by Modi at p. 155 it was stated that:
"in the case of constriction occurring at the end of expiration the lungs are congested, oedematous and exude bloody serum on being cut, but are pale if constriction occurred at the end of inspiration.... The right side of the heart, the pulmonary artery and venae and cavae are full of dark fluid blood, and the left side is empty. The abdominal organs are usually congested. The brain is usually normal, it may be pale or congested according to the mode of death. For symptoms at p. 158 it was pointed out that if the wind pipe is compressed so suddenly as to occlude the passage of air altogether, the individual is rendered powerless to call for assistance, becomes insensible and dies instantly. If the windpipe is not completely closed, the face becomes cyanosed, bleeding occurs from the mouth, nostrils and ears, the hands are clenched and convulsions precede death. As in hanging, insensibility is very rapid, and death is quite painless. Regarding appearances on the neck he stated at p. 159 that if the fingers are used (throttling) marks of pressure by the thumb and fingers are usually found on either side of the windpipe..... At p. 161, appearances due to asphyxia it was stated that the face is swollen and cyanosed, and marked with petechiae. The eyes are prominent and open. In some cases they may be closed. The conjunctive are congested, and the pupils are dilated. The lips are blue. Bloody Page 26 of 48 R/CR.A/2233/2009 CAV JUDGMENT foam escapes from the mouth and nostrils, and sometimes pure blood issues from the mouth, nose and ears, especially if great violence has been used. Regarding internal appearances he stated that the cornua of the hyoid bone may be fractured, also the cornua of thyroid cartilage but fracture of the cervical vertebrae is extremely rare. The liver may show cloudy swelling and necrosis of the cells, if death has been delayed. The kidneys may show signs of nephritis, and on section the straight tubules may be filled with debris of the blood corpuscles giving the appearances of reddishbrown markings."
28.8 In H.W.V. Coxs Medical Jurisprudence and Toxicology by Dr. Bernard Knight, 5th Edn. in Chapter 1 at p. 207 it was stated that:
" strangulation is again a term which is not exact in itself, as there are several types of strangulation, mainly manual strangulation and strangulation by a ligature. Though both these are similar, there are certain differences which are reflected in the pathological findings. Strangulation is not by any means the same thing as asphyxia; in fact, a better name would be 'pressure on the neck', which is used as an alternative description by some pathologists. Regarding manual strangulation and the length of the time required to cause death at p. 213 it is stated that the length of time for which pressure on the neck must be maintained to cause death is very variable, from zero seconds to several minutes. The statement regarding length of time he stated that no dogmatic statement of time of two minutes or three minutes can be made. It is of little practical value as unless a witness is present, there is never any way of determining such times. If, however, there is physical evidence of pressure on the neck from bruises and haemorrhage, but no congestion whatsoever, then it is certain that death was relatively rapid before these classical signs appeared, due to reflex cardiac arrest. Where death is due to cerebral anoxia from compression of carotid vessels, then there is usually cyanosis and congestion due to simultaneous blockage of the jugular venous system, though ignorance of time factors make this statement of little practical value. In Taylor's Medical jurisprudence it was stated at p. 282 that the amount of pulmonary oedema can be used to estimate the time interval between injury and death. In practice it is seldom of value as it is common experience that the changes described can develop with great rapidity when a patient dies after choking. At p. 285, asphyxia by violence, it is stated that if the breathing is interfered with for a sufficient period of time Page 27 of 48 R/CR.A/2233/2009 CAV JUDGMENT unconsciousness and death will supervene."
28.9 In the Modi's Medical Jurisprudence and Toxicology, 22nd Edition at Page No.270, the difference between hanging and strangulation are given in a comparative table:
Hanging Strangulation
Mostly suicidal. Mostly homicidal
Face Usually pale and petechiae rare. Face Congested, livid and marked with petechiae.
Saliva - Dribbling out of the mouth down on the chin Saliva - No such dribbling.
and chest.
Neck - Stretched and elongated in fresh bodies Neck - Not so
External signs of asphyxia, usually not well External sings of asphyxia, very well marked
marked (minimal if death due to vasovagal and carotio
sinus effect)
Bleeding from the nose, mouth and ears Bleeding from the nose,mouth and ears may be
very rare. found.
Ligature mark - Oblique,non continuous Ligature mark Horizontal on transverse
placed high up in the neck between the chin and the continuous, round the neck, low down in the neck
larynx, the base of the groove or furrow being below the thyroid, the base of the groove or furrow
hard, yellow and parchment like. being soft and reddish.
Abrasions and ecchy moses round about Abrasions and ecchy- moses round about the
the edges of the ligature mark, rare. edges of the ligature mark, common.
Subcutaneous tissues under the mark - Subcutaneous tissues under the mark - Ecchy-
White,hard and glistening mosed.
Injury to the muscles of the neck - Rare. Injury to the muscles of the neck - Common
Carotid arteries, internal coats ruptured in Carotid arteries, internal coats ordinarily ruptured.
violent cases of a long drop.
Fracture of the larynx and trachea - Very Fracture of the larynx and trachea - Often found
rare and that too in judicial hanging. also hyoid bone.
Fracture - dislocation of the cervical Fracture - dislocation of the cervical vertebrae -
vertebrae - Common in judicial hanging. Rare.
Scratches, abrasions and bruises on the Scratches, abrasions fingernail marks and bruises
face, neck and other parts of the body - Usually not on the face neck and other parts of the body -
present Usually present.
No evidence of sexual assault Sometimes evidence of sexual assault.
Emphysematous bullae on the surface of Emphysematous bullae on the surface of the
the lungs - Not present lungs - May be present
29. The evidence of Dr. Bhikhubhai Ramabhai Akediwala, the P.W 1, Exh.13 discloses the following external injuries as mentioned in column No.17 of the postmortem report, Exh.14.
1. The ligature mark is transverse, not completely encircling the neck and crossing the mid line on the thyroid cartilage. The base of ligature mark is soft Page 28 of 48 R/CR.A/2233/2009 CAV JUDGMENT and reddish in colour starting right lateral aspect of neck 7 cms away from midline, come to midline on the thyroid cartilage to left lateral aspect of neck and sight upwards size 14 x 1cms and not marked by deep.
2. Diffused swelling on neck laterally on right side 3 x 2 x 1/2 cmts.
3. Abrasion on left sub mandibular area, bluish red in colour oval in shape and size 1 1/2 x 1 cmts.
4. Fracture of thyroid cartilage
5. No bony injury of skull bones, but fracture of thyroid cartilage both superior horns.
30. The postmortem report further discloses the following:-
i. Brain normal in size brain and meninges are congested and the petechial haemorrhages present.
ii. No ribs fracture
iii. Larynx, trachea and bronchi are congested and
contain frothy bloody stain mucus
iv. Both lungs are marked by congested larger sub
pleural haemorrhages present.
v. Congested right side of heart is full of dark blood and
inside of heart is empty.
vi. Cause of death is asphyxia due to strangulation.
31. The cross-examination of the P.W 1 Dr. Bhikhubhai
Ramabhai Akediwala reveals the following:-
i. Strangulation indicates the blockage of air-passage.
ii. Air passage gets blocked in cases of both i.e. Page 29 of 48 R/CR.A/2233/2009 CAV JUDGMENT strangulation and hanging.
iii. The ligature mark is not found completely encircling the neck in cases of hanging whereas in strangulation by ligature, there is possibility of ligature encircling the neck completely.
iv. The ligature mark is generally below the thyroid cartilage in case of strangulation whereas in this case ligature mark was over the thyroid cartilage.
v. The abrasions and petechial marks are noticed on the edge of the ligature mark in case of strangulation, whereas in this case such petechial marks were not on the edge of the ligature mark.
vi The bruises on the neck muscles are not found in the cases of hanging whereas they are more common in strangulation which were not found in the present case. The subcutaneous tissues get ecchymosed under the mark in case of strangulation by ligature which were not noticed in the instant case.
vii As regards hyoid bone, fracture may occur in hanging whereas in strangulation such fracture is very rare. The witness admitted that in the entire postmortem report there is no reference about the condition of the hyoid bone.
viii. In strangulation by ligature there is generally fracture of larynx and trachea, whereas in hanging it is rare.Page 30 of 48 R/CR.A/2233/2009 CAV JUDGMENT
ix. Generally in case of hanging emphysematous bullae is not present on the surface of the lungs, whereas in case of strangulation by ligature this symptom is very common on the surface of the lungs and the same was not noticed at the time of postmortem in this case.
x. In a case of hanging, the trickling saliva is often to be noticed but the same is not noticed in case of strangulation by ligature. The witness has admitted that he has not made any reference about saliva in the postmortem report. However, he had noticed in the inquest report about saliva dribbling from the mouth.
xi. Alhough the postmortem refers to bleeding from the nose, mouth and ears, yet the inquest report is absolutely silent on these aspects.
xii. The position of carotid arteries has not been noted in the postmortem report. Similarly, no traces of urine were found on the clothes.
32. In the inquest report Exh.24, it has been noted that both the eyes and mouth of the deceased were closed and there was white froth oozing from the left nostril and it has also been stated that the deceased had died due to injuries on account of hanging.
33. The medical evidence on record does not conclusively rule out the possibility of suicide by hanging. It appears that the P.W 1, Dr. Akediwala, while giving his expert opinion has laid much emphasis on the fact that there was bleeding from Page 31 of 48 R/CR.A/2233/2009 CAV JUDGMENT the mouth, nose and ears and petechial haemorrhages on the forehead were found. As fracture of the thyroid cartilage was present, the P.W 1 has opined that it is a case of homicidal violence i.e. death by strangulation, but at the same time, most of the symptoms for strangulation were not found, such as fracture of the larynx and trachea. The hyoid bone was also not fractured. The fracture or dislocation of the cervical vertibrae was absent. Although on probabilities the medical evidence may suggest more towards strangulation than for hanging, yet unless the Court is able to conclude definitely from the medical report of the doctor that it is a case of only homicidal death and not suicidal death, it would be very unsafe to convict the accused relying on such opinion expressed by an expert witness like the P.W 1. The trial Court has laboured to deliver a very lengthy judgment, but in the process, has accepted the entire evidence of the P.W 1 as a gospel truth. 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 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 those criteria to the facts proved by the evidence of the case.
34. In the case of Ramesh Chandra Agrawal Vs. Regency Hospital Ltd., reported in AIR 2010 SC 806, the Supreme Court has observed as under:-
11) EXPERT OPINION:
The law of evidence is designed to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be Page 32 of 48 R/CR.A/2233/2009 CAV JUDGMENT admissible is that it is necessary to hear the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person. Thus, there is a need to hear an expert opinion where there is a medical issue to be settled. The scientific question involved is assumed to be not within the court's knowledge. Thus cases where the science involved, is highly specialized and perhaps even esoteric, the central role of expert cannot be disputed. The other requirements for the admissibility of expert evidence are:
i) that the expert must be within a recognized field of expertise
ii) that the evidence must be based on reliable principles, and
iii) that the expert must be qualified in that discipline.
[See Errors, Medicine and the Law, Alan Merry and Alexander McCall Smith, 2001 ed., Cambridge University Press, p.178]
12. Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under:
"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts. Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by "A" . Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant."
Page 33 of 48 R/CR.A/2233/2009 CAV JUDGMENT13) The importance of the provision has been explained in the case of State of H.P. v. Jai Lal and Ors.,[(1999) 7 SCC 280]. It is held, that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
14) It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Jones (AIR 1934 All 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.
15) 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 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. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions. (See Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and Others) [Criminal Appeal Nos. 1191-1194 of 2005 alongwith Civil Appeal No. 1727 of 2007, decided on 7.8.2009].
16) In the case of State of Maharashtra v. Damu s/o Gopinath Shinde and others., [AIR 2000 SC 1691 at page 1700], it has been laid down that without examining the expert as a witness in Court, no reliance can be placed on an opinion alone. In this regard, it has been observed in The State (Delhi Administration) v. Pali Ram, [AIR 1979 SC 14] that "no expert would claim today that he could be absolutely sure that his opinion was correct, expert depends to a great extent upon the materials put before him and the nature of question put to him."
17) In the Article "Relevancy of Expert's Opinion" it has been opined that the value of expert opinion rest on the facts on which it is based and his competency for forming a reliable opinion. The evidentiary value of the opinion of expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its Page 34 of 48 R/CR.A/2233/2009 CAV JUDGMENT accuracy can be cross checked. Therefore, the emphasis has been on the data on basis of which opinion is formed. The same is clear from following inference: "Mere assertion without mentioning the data or basis is not evidence, even if it comes form expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value."
35. Thus, from the aforenoted decision of the Supreme Court, it could be said that a doctor who deposes before the Court as an expert witness, is not a witness of fact, and his evidence would be more in the nature of an advice. The role of a doctor as an expert witness is to furnish the Court with the necessary opinion for testing the accuracy of the conclusions so as to enable the Court to form its independent judgment by the application of those of such criteria to the facts proved by the evidence of the case. The expert opinion must always be received with great caution. It is unsafe to base a conviction solely on expert opinion, without substantial corroboration. The expert evidence cannot be conclusive because, it is, after all, opinion evidence. The expert evidence being opinion evidence, before acting on such evidence, it is desirable to consider whether it is corroborated either by direct evidence or by circumstantial evidence. It is necessary that reasons for the opinion must be carefully proved into and examined.
36. The cross-examination of the expert witness, the P.W 1, clearly reveals that the evidence as to strangulation by ligature as narrated by the Medical Officer is not borne out by the oral evidence of Nitu, the P.W 3. The P.W 3, Nitu, has deposed that the accused persons were beating the deceased with their hands. The P.W 3 and her husband i.e. the brother of the accused No.1, had intervened to save the deceased and Page 35 of 48 R/CR.A/2233/2009 CAV JUDGMENT at that stage, the deceased had ran away in a room. According to the P.W 3, Nitu, the accused No.1 followed Shalu in the room and closed the room from inside. The P.W 3 and her husband had tried to open the door by pushing the same. On breaking open the door, the P.W 3 noticed that the accused No.1 was sitting on the chest of the deceased and was pressing her neck while the deceased was lying on the floor. The P.W 3 has also deposed that she separated the accused from her sister and her sister, the deceased, became calm after two or three hiccups.
37. The oral version of the P.W 3 Nitu clearly rules out strangulation by ligature. The manner in which the P.W 3 has narrated about the incident reveals manual strangulation or throttling. The medical evidence on record does not support the theory of manual strangulation or throttling.
38. The P.W 3, Nitu, the sister of the deceased is the only witness examined by the prosecution to substantiate the theory of the accused No.1 pressing the neck of the deceased and thereby committing the offence of murder. The first part of the incident, as disclosed by her, had taken place at around 2 P.M on 4th June, 2006 when there was a quarrel between the accused No.1 and the deceased on the issue of cooking vegetables. The second incident referred to by the P.W 3 had taken place after 6 P.M when the in-laws i.e. the accused Nos. 2 and 3 visited the residence of their son, the accused No.1. The accused No.1 was sleeping in the room and at that point of time, the other two co-accused were abusing the deceased. The accused No.1 is said to have come out and joined his parents in beating the deceased. According to the P.W 3, Nitu, Page 36 of 48 R/CR.A/2233/2009 CAV JUDGMENT she herself and her husband, the D.W 6 had intervened to save Shalu, but thereafter, Shalu ran away in the room followed by her husband i.e. the accused No.1, and closed the door from inside. According to the P.W 3, she herself and her husband, the D.W 6, pushed door and opened the same and at that time, the P.W 3 found the accused No.1 sitting on the chest of the deceased and pressing her neck. According to her, she was able to release Shalu from the clutches of the accused No.1, but by that time Shalu became calm and after taking two to three hiccups breathed her last. Thus, according to the P.W 3, the second part of the incident took place at around 6'O clock in the evening.
39. We find it extremely difficult to believe the version of the P.W 3, Nitu, regarding the overt act attributed to the accused No.1, for more than one reason. First, the theory of homicidal death advanced by the prosecution through the evidence of the P.W 3 is not supported wholly by the medical evidence on record. Secondly, the delay in lodging the FIR at the instance of the P.W 2, the father of the deceased, assumes lot of significance in the background of the entire case. If the P.W 3, Nitu, is the true eyewitness to the incident and if she had actually seen the accused No.1 sitting on the chest of her sister, the deceased, and pressing her neck, then why the P.W 2, the father of the deceased was so reluctant to lodge the complaint immediately on his reaching Deesa from his native State, Rajasthan. The complaint Exh.17 was lodged on the next day at around 7.30 in the evening. If the P.W 3, Nitu, claims to be an eyewitness to the incident, then it is but obvious that she must have stated regarding the incident first on telephone to her brother, Purshottam Acharya, the P.W 4, Page 37 of 48 R/CR.A/2233/2009 CAV JUDGMENT and thereafter, at least in details before the P.W 2, her own father, after arriving at Deesa in the early morning at 5'O Clock on 5th June, 2006. What was the reason for the P.W 2, the father of the deceased to give a statement before the Deputy Superintendent of Police, Exh.18, that he would lodge the complaint only after the receipt of the postmortem report as he had doubt as regards the nature of the death of his daughter. In the statement Exh.18, it has been stated by the P.W 2 that he would lodge the complaint only after due deliberations with his other relatives. We fail to understand why the P.W 3, Nitu, did not lodge the complaint immediately. Be that as it may, but there is no satisfactory explanation why the P.W 2, the father of the deceased, waited so long to lodge the complaint. The only reason we can assign is that the P.W 2, the father of the deceased knew very well that his daughter Shalu had committed suicide by hanging and, therefore, he might have been in two minds whether to lodge a false complaint regarding homicidal death, or not. Ultimately, it appears that the P.W 2, as the father of the deceased, and the P.W 3, Nitu, as the sister of the deceased might not have been able to console themselves with the sudden tragic death of the deceased and ultimately lodged the complaint of homicidal death.
40. As against the evidence of the P.W 3, Nitu, there is evidence of the defence witnesses and the version of the defence witnesses appears to be far more probable than the version of the P.W 3, Nitu.
41. At this stage, we deem it necessary to look into the accidental death report, Exh. 43, lodged by the accused No.1 Page 38 of 48 R/CR.A/2233/2009 CAV JUDGMENT himself as the husband of the deceased. Exhibit 43 reads as under:-
"My name is Rakeshkumar Damodarbhai, by caste Acharya, aged 24, occupation - private service, original resident of Badmer, Dhani Bazar, Rajasthan and at present residing at Dhuliyakot, Indira Colony, Tran Hanuman Road, Deesa, Taluka Deesa, Tel. No. 228944, Mobile No. 9427487937.
Coming in person, I do hereby declare the facts of my complaint as under:-
We are two brothers and both the brothers are married. My marriage was solemnized prior to three years with Shalu, the daughter of Ganpatlal Acharya, residing at Bavdi (Jodhpur) and we both the brothers are residing jointly at the aforesaid place, and my mother and father are residing separately in Dharnidhar Society, and I am doing service at the Clinic of Dr. Kalpesh Talati from 8.00 morning till 7'O Clock in th evening.
Today, on 4th June, 2006, in the afternoon, I went to my house from the clinic for lunch at 2'O Clock. While sitting for lunch I noticed too much oil in the vegetables cooked and therefore, I reprimanded my wife Shalu, and asked why did she put too much oil in the vegetable prepared, and also requested her to cook another vegetable, as I did not like the vegetable already cooked. However, as my wife refused to prepare another vegetable, I went to my job at the clinic without taking lunch. Thereafter, at 7.28 in the evening, on my mobile, my brother Sanjaybhai had called to inform me that my wife Shalu had hanged, and he requested me to reach home immediately by taking a vehicle. Therefore, I returned to home by taking a vehicle and upon reaching, my brother Sanjay told me that Shaluben hanged herself on the ceiling fan by tying a saree, and that he himself with the help of his wife Nitu, brought down Shaluben, and as she was found to be having difficulty in breathing, in the Maruti vehicle brought by me, we had taken Shalu for treatment to the Clinic, where the doctor on duty after examination, told us that Shalu has expired.
The age of my wife is about 20 years, and I married Page 39 of 48 R/CR.A/2233/2009 CAV JUDGMENT her about three years back. It appears, as I reprimanded, my wife hanged to death by tying a saree from ceiling fan, and except that, I do not see any other reason for her committing suicide. Thus, after handing over dead-body of my wife for the postmortem at Deesa Hospital, I have come here with my brother and my father and declare the facts of the complaint for legally doing the needful.
Sd/ [Illegible] Rakeshkumar Damodarbhai Acharya Before: Sd/- [illegible] Police Station Office, Deesa City"
42. The defence has examined Sanjaykumar Damodarbhai Acharya, the brother of the accused No.1 and husband of the P.W 3 Nitu. The DW 6 Sanjaykumar, in his evidence Exh. Exh.63, has deposed regarding the incident of verbal altercation at about 2'O Clock in the afternoon when the accused No.1 had come home for lunch. He has deposed regarding the quality of food, which was being cooked by the deceased and the dissatisfaction regarding the same at the end of the accused No.1. He has deposed that after the exchange of words between the accused No.1 and the deceased, the accused No.1 left the home for the dispensary without taking lunch. The D.W 6 also refers to the incident of a verbal quarrel between the two sisters at 7 P.M in the evening. The D.W 6 in his evidence has clearly deposed that the P.W 3, Nitu i.e. his wife, had reprimanded his sister, the deceased, stating that her temperament was bad and that the deceased was a person of quarrelsome nature. He has deposed that thereafter, the deceased went inside the room and locked herself up. The door was not opened for some time and therefore, the D.W 6 and the P.W 3, Nitu, raised shouts, as a Page 40 of 48 R/CR.A/2233/2009 CAV JUDGMENT result, the neighbours residing in the locality viz. Arjunbhai Ishwarlal Raval, D.W 5, Gomiben Dineshbhai Raval, D.W 1, Chandrikaben Sureshbhai Mali, D.W 2 and others rushed at the house of the accused and broke open the door by using force. No sooner was the door broken open, than the deceased was found hanging in the room by tying a saree with a ceiling fan. According to the D.W 6, he himself with the help of Arjunbhai Raval, D.W 5, brought the deceased down from the ceiling fan by untying the saree.
43. It appears from the evidence on record that the D.W 6 Sanjay, immediately from his residence land-line No. 228944, called up the accused No.1 Rakesh on his mobile No. 9427487937 and informed the accused No.1 that Shalu had committed suicide by hanging herself from a ceiling fan. This telephone call was made at around 7.30 in the evening and the accused No.1, thereafter, immediately came home in his car from the hospital, where he was serving as a compounder.
44. Apropos the above, the defence has also examined Dashrathlal Manilal Patel, the D.W 4. The D.W 4, in his evidence Exh.58, has produced the land-line record of telephone No. 228944, which clearly establishes that on 4th June, 2006, at around 7.32 P.M, there was a phone call from the land-line to the mobile No. 94274887937. The printout Exh.60 clearly supports the version of the D.W 6, Sanjaykumar. The certificate of BSNL Exh.64 clearly reveals that the mobile No. 9427487937 was in the name of the accused No.1 Rakeshkumar Damodarbhai Acharya. It also appears from the documentary evidence on record that the duration of the phone call made by the D.W 6 to his brother, the accused No.1, Page 41 of 48 R/CR.A/2233/2009 CAV JUDGMENT on his mobile was 0.05. The call duration is suggestive of the fact that the D.W 6 must have conveyed as fast as possible to his brother the accused No.1 that Shalu had committed suicide. It is difficult for us to accept the argument canvassed on behalf of the prosecution that after the incident, such evidence could even be fabricated with a view to create the defence. However, it does not appear to be a fabricated piece of evidence.
45. The defence has also examined Gomiben Dineshbhai Raval, the D.W 1, Exh.53, Chandrikaben Sureshbhai Mali, the D.W 2, Exh. 54 and Arjunbhai Ishwarlal Raval, D.W 5, Exh. 61 to establish that on the day of the incident between 7 and 7.15 in the evening, they heard shouts coming from the house of the accused No.1 Rakeshkumar, and all of them rushed at the place of the accused No.1. No sooner had they reached the house of the accused No.1, than they were told by the P.W 3, Nitu and the D.W 6, Sanjaykumar that Shalu had locked herself up in the room and was not opening the door. Thereafter, the people who had gathered at the house of the accused No.1 broke open the door and found Shalu hanging from a ceiling fan with a saree tied around her neck. The scene of offence panchnama also establishes the version of the defence that the door had to be broken open and the condition of the latch also supports the case of the defence. All the three defence witnesses referred to above have deposed that the D.W 6 Sanjaykumar and the D.W 5 Arjunbhai had brought down the dead body of the deceased from the ceiling fan.
46. It is well settled that the evidence tendered by the Page 42 of 48 R/CR.A/2233/2009 CAV JUDGMENT defence witnesses cannot always be termed as a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution. The rejection of the defence case on the basis of the evidence tendered by the defence witnesses has been effected rather casually by the trial Court [See State of Haryana Vs. Ram Singh, 2002 Criminal Law Journal 987).
47. Thus, the evidence of the P.W.3 Nituben suggests a case of throttling and not strangulation as sought to be made out by the medical evidence. The detailed cross-examination of the Medical Officer does not rule out asphyxia due to hanging. The version of throttling came to be disclosed for the first time on 5th June, 2006, at about 7 P.M i.e. almost after 24 hours. The defence version of the deceased committing suicide by hanging through the oral evidence of the defence witnesses is fully supported and corroborated by the A.D report, Exh.43, made by the accused No.1 at the Deesa City Police Station on 4th June, 2006 at around 10.45 P.M. This report referred to above clearly refers to a quarrel at about 2.00 P.M between the accused No.1 and the deceased, and thereafter, at around 7.32 in the evening the accused No.1 receiving a telephone call from the D.W 6, Sanjaykumar on his mobile about the incident of hanging by Shalu. It is thereafter that the accused No.1 rushed to his residence and took the deceased along with his brother, the D.W 6 to the Deesa Hospital, where she was pronounced by the doctor as brought dead. It also appears from the evidence of the P.W 7, PSI Bhavansinh Shivsinh Barad, Exh.27 that he had taken over the investigation at Page 43 of 48 R/CR.A/2233/2009 CAV JUDGMENT around 12 in the midnight and had recorded the statements of Nitaben Madhabhai, Chandrikaben Suraji, Diriyaben Achalaji and others at night.
48. On the overall assessment of the materials on record, we have reached to the conclusion that the case of the prosecution that the accused No.1 had pressed the neck of the deceased and had thereby throttled her to death was an afterthought not substantiated by the medical evidence. The most disturbing feature of the entire case is the silence of the P.W 3, Nituben, the solitary eyewitness, before the Police when she had accompanied her father, the P.W 2, to the Deesa City Police Station, after 5 A.M in the morning on 5th June, 2006. The report Exh.18 clearly indicates that upto 10 A.M, there was only suspicion regarding the death of the deceased, and there was no information about the act of the accused Rakeshkumar in committing the murder of the deceased by pressing her neck. It appears that the two incidence, one which occurred at 2 'O Clock in the afternoon and the other, which occurred at 7 'O Clock in the evening, might have taken a heavy toll on the mind of the deceased. The first quarrel which had ensued in the afternoon was regarding the quality of the food, which was being cooked by the deceased and the accused No.1 going back to work without having lunch, and the second incident, which occurred in the evening appears to have hurt the feelings of the deceased, as her own sister Nitu, the P.W 3, reprimanded her stating that she was a person of a very quarrelsome nature. The deceased might have felt bad and insulted and therefore, might have taken the extreme step of hanging herself from a ceiling fan by tying a saree around her neck.
Page 44 of 48 R/CR.A/2233/2009 CAV JUDGMENT49. Therefore, two versions have been placed before us for our consideration. The version of homicidal death by the prosecution, and the version of suicidal death by the defence. At any rate the fact that the deceased may have committed suicide, cannot be safely excluded or eliminated. It may be that her husband i.e. the accused No.1 may have murdered her as suggested by the P.W 3, the solitary eyewitness, but when two views are reasonably possible, the benefit must go to the accused. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.
50. We are, therefore, clearly of the opinion, taking the best view of the matter on the evidence in this case that two possibilities are clearly open (i) that it may be a case of suicide or (ii) that it may be a case of murder, and both are equally probable hence, the prosecution case stands disproved. [See Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622)
51. The trial Judge owes a responsibility to weigh the probability of the prosecution evidence, which he has to do for arriving at the decision whether the prosecution allegations have been proved by the standard laid down in Section 3 of the Evidence Act. In so weighing the probability of the prosecution allegations, of necessity, other probabilities also appearing from the evidence brought before the Court have to be considered for comparative assessment which of the Page 45 of 48 R/CR.A/2233/2009 CAV JUDGMENT probabilities should be accepted as a fact proved. If, from the evidence, any probability consistent with the innocence of the accused is equally strong as the probability pointing to his guilt, then on the strength of the presumption of innocence in favour of the accused, it could be said that the prosecution has failed to prove its allegations. Even if the probability consistent with innocence is not equally strong with other probability of his guilt, yet the probability of innocence is such as would cast a doubt, then it may be a case of reasonable doubt, the benefit of which must go to the accused. That being so, it is incumbent upon the trial Judge to consider all the probabilities that appear from the evidence before him and he cannot afford to be credulous and omit to consider reasonable probabilities only because in the opinion of the medical expert, the case is one of homicidal death and not suicidal death. The judgment rendered by the trial Court has given us an impression that it neglected to consider a probable defence appearing from the evidence only because the medical evidence suggests so. The trial Court, as a Judge of fact, must consider the evidence given in the case from all view points.
52. In the aforesaid context, we may quote with profit the observations of the Supreme Court in the case of Lal Mandi Vs. State of West Bengal, reported in (1995) Criminal Law Journal, 2659, as contained in paragraph 5 of the decision.
"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere Page 46 of 48 R/CR.A/2233/2009 CAV JUDGMENT with" the order of conviction where the trial Court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh's case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate Court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of an accused which gets strengthened on his acquittal is not available on his conviction. An appellate Court may give every reasonable weight to the conclusions arrived at by the trial Court but it must be remembered that an appellate Court is duty bound, in the same way as the trial Court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial Court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."
53. Since we are not inclined to accept the entire case of the prosecution, the conviction of the accused Nos. 2 and 3 i.e. the in-laws of the deceased, of the offence under Section 323 of the Indian Penal Code is also not sustainable in the eye of law.
54. In the result, the appeal succeeds and is hereby allowed. The order of conviction and sentence passed by the trial Court against the accused-appellants are hereby set aside. The accused No.1, Rakeshkumar Damodarji Acharya is ordered to be released forthwith, if not required in any other case. As the accused Nos. 2 and 3 are on bail pending this appeal, their bail Page 47 of 48 R/CR.A/2233/2009 CAV JUDGMENT bonds stand discharged.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 48 of 48