Madhya Pradesh High Court
Abdul Ghaffar S/O Jahangir vs State Of Madhya Pradesh And Ors. on 21 August, 1993
Equivalent citations: 1995ACJ383, 1994(0)MPLJ65
ORDER V.D. Gyani, J.
1. The petitioner, an old man, past sixty, whose sons and son-in-law were allegedly carried away by Mhow police on the night of 15th August, 1992, and later shown to have been arrested on 18-8-1992, in connection with an offence under Section 457, Indian Penal Code registered at the Police Station, had moved the Court of A.C.J.M. for their release but in vain. It was on 19th that he was asked by a senior police officer to see his son Anis in the Civil Hospital at Mhow. The petitioner rushed to the hospital, he was taken to the mortuary by doctor in charge, only to find him lying dead with several injuries on his body. A call for 'Mhow Band' was given by public, accordingly Mhow was kept 'Band'.
2. The petitioner petitioned and complained to higher authorities but to no avail. He has now approached this Court with the present petition praying for the following orders:
(i) Registration of offence under Sections 302 and 387, Indian Penal Code and investigate same in accordance with law,
(ii) To proceed against the accused as also the abettors of the crime,
(iii) Award of compensation of Rs. 2 lacs to the petitioner.
3. By this petition under Article 226 of the Constitution, full of shocking facts and disturbing features, Shri Khan, Sr. Advocate, has attempted and embarked on a mission to fight injustice and to help a poor underprivildged, the petitioner, whose son, as alleged has been the victim of custodial violence resulting in death, has tried to put both, his fervour and felicity coupled with scholarship into the case, but as it invariably happens the failed idealist, discovers to his chagrin that even the noblest of efforts, falls short, in face of constrain, the staggering case lead tremendous time pressure, limited resources, and the bureaucratic hurdles, at times, put forth, but it must be said to his credit, that he has tried to overcome all these with utmost perseverance and a sense of commitment.
4. So far as the first two reliefs are concerned, in view of the hw as laid down by the Supreme Court in State of Haryana v. Bhajanlal, AIR 1992 SC 604, there can be no legal hitch or hesitation in granting the same. We accordingly grant the same. The Supreme Court has held as follows :
" 31. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expre- ssion ' 'information'' without qualifying the same as in Section 41(1) (a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non-qualification of the word' 'information" in Section 154( 1) unlike in Section 41 (1 )(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognisable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'Credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer in charge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an officer in charge of a police station shall be reduced into writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1955 which word is now used in the Sections 154, 155 and 157 and 190(c) of the present Code of 1973 (Act II of 1974). An overall reading of all the Codes makes it clear that the condition which is sine qua non for recording a First Information Report is that there must be an information and that information must disclose a cognisable offence.
32. It is, therefore, manifestly clear that if any information disclosing a cognisable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information."
5. It is accordingly ordered that on disclosing a commission of cognisable offence the police should register a case and investigate the same in accordance with law. It is to be borne in mind that those who abetted a commission of offence either directly or indirectly by their acts of commission or omission, should not escape the arms of law.
6. It is in this context, that the role played by the panel of doctors who performed post mortem examination, and submitted their report, calls for a serious consideration.
7. So far as compensation is concerned, the same shall be discussed at the appropriate stage, presently we are concerned with the re-autopsy report.
8. The first hurdle in the case, as put forth is by the five mighty medical minds, combined who in their uniquely, unanimous post mortem examination report have come out with an opinion so far unsurpassed, unmatched, unequalled in its remarkable unanimity and unique in the sense, that all of them wilfully refuse to see the light of the day, and indulged in successfully, withholding, not only withholding but also concealing and destroying evidence that is demonstrably clear and relevant in a criminal trial. 'Experts' as they are, their eyes do not reach the light, their ears are not sensitive to the truth so loudly proclaimed by the bleeding injuries as noted by them; their own potential positive findings as recorded on the post mortem examination report. Even the bruise may prove to be fatal, when it involves an important internal organ. Multiple bruises though individual, trivial and slight because of grievous hurt and result in death due to shock and internal haemorrhage. Therefore, the Code of Ethics remains in print but violated in practice, at times with impunity. While reports of medical mal practices galore and appear almost every day in press; but the case at hand is a classic one, where even the dead has not been spared by the medical men.
9. The primary object of forensic autopsy is to determine the cause of death it is here that the pathologists owe a duty even to the dead. Sadly enough the five medical minds entrusted with the task have betrayed the faith by keeping mum on the point. Apart from determining the cause of death these doctors again, forgot the dictum propounded by Dabot in the U. S. A. as back as 1912 that even the dead can teach the living, which still holds good - emphasising the value of autopsies in detecting diagnostic errors.
10. The medico legal post mortem examination as has been pointed out by Bernard Knight, a celebrated authority on Forensic Pathology dubiously poor opinion is often worse than no opinion at all, as in the later case the legal authorities will at least be aware of the deficiency in thee evidence, rather than be misled by the often dogmatic inaccuracies by an inexperienced doctor.
11. It would not be out of place to note that a panel consisting of the following doctors carried the post mortem examination:
(i) Dr. M. S. Vishnar
(ii) Dr. G. D. Mundra
(iii) Dr. K. C. Porwal
(iv) Dr. Suman Agrawal
(v) Dr. P. Dube.
12. The post mortem examination report with its requisition has been placed on record. The requisition dated 19-8-1992 received at 6.15 p.m. which reads as follows:
^^vHkh rd dh tk¡o ij tks Jheku ,l-Mh-,e-egks-
}kjk yh xbZ gSA e`rd eks- vuhl dh e`R;q ds laca/k esa dksbZ Li"V dkj.k irk ugha py ik jgk gSA iapksa dh jk; ls Hkh lgh dkj.k e`R;q dk tkuus ds fy, ih-,e-
djk ysuk mfpr crkus ij ih-,e- QkeZ Hkjdj fuosnu gS fd e`rd dk ih-,e- MkDVjksa dh cSp ls djk;s tkus dh Ñik dh tk;A** The following are findings of the panel of doctors, highly qualified and experienced:
"On external examination of dead body of young aged about 2 8 years. Eye balls were open, pupils dilated and fixed, conjunctive pale blood stained fluid coming out from both nostrils fall pale, lips and tongue were pale, tongue was inside the oral cavity and nails were pale, skin pale, Rigur mortis was present no external injury over genital organs. And sphincter was normal and not relaxed."
The following injuries were found :
(1) Transverse contusion reddish blue 4" x 3V2" on (1) arm middle part on auterolatecal aspect on dissection no bony injury.
(2) Abrasion circular in shape 1 1/2 x 3/4 with formation on (L) forearm on anterolateral aspect in middle.
(3) Transverse contusion 3" x 2 1/2" on autero media aspect mid of (L) leg, (4) Vertical abrasion 1" x 1/4" anterior aspect of upper 1/3 of (L) leg.
(5) Contusion 2" x 2" reddish blue on anterior aspect of (R) leg before knee, (6) Contusion 1" x 72" x `1/2" on front of lower 1/3 of (R) leg, (7) Contusion 3" x 2" on dorsum of mid of (R) foot reddish blue in colour, (8) Contusion 272" x 2" on dorsum of mid of (L) foot, reddish blue in colour, (9) multiple reddish blue contusions on both buttocks, (10) Transverse contusions 6" x -W on the back on sacral region, reddish blue in colour, (11) Contusion reddish blue in colour 8" x 3" on back of (L) thigh upper half, (12) Contusion reddish blue 4" x 2" on back of lower xh of (L) thigh, (13) Multiple contusions reddish blue on (L) scapular region, (14) Circular abrasion 'A" x 'At" on medial side of (R) wrist.
All above contusions on dissection - the subcutaneous tissues of muscles were cognested. No bony injury any where and no rupture of any major verse were noted.
NOTE : All the injuries were antemortem, caused by hard and blunt object. Their opinion reproduced below:
(1) In our opinion no definite opinion can be given regarding the cause of death. However viscera (pieces) have been presented sealed and handed over to the same police constable to be sent for chemical analysis.
(2) Duration of death was between 18 to 24 hrs. at the time of performing post mortem examination.
(3) Articles :
(a) Yellow shirt
(b) Black fullpant
(c) Blue underwear
(d) White baniyan All the four articles after examination in sealed packet, handed over to the same police constable.
(4) Dead body after P.M. examination was handed over to the same police constable.
13. The doctors at no point of time asked for the viscera report from the police nor have they, in their post mortem/examination report, indicate that before giving any opinion they would await the viscera report from the chemical examiner. It was during the course of hearing of this petition, particularly when the magisterial enquiry papers were placed before us, that we asked the Government Advocate to place the viscera report on record. On such report being placed on record by the G. A., the doctors concerned were noticed; accordingly they appeared before this Court. They have filed yet another report in the light of viscera report dated 30-11-1992. It clearly indicates a few passages extracted and cited from Modi's Text Book of Medical Jurisprudence. There is hardly anything, even in the subsequent report filed by the doctors.
14. Shri Khan argued that if the doctors had relied or desired for such a report, they could have asked for it from the police; but they never did so and now they are seeking shelter behind the views expressed by Modi in his Medical Jurisprudence, ignoring the hard realities and their own findings.
15. The viscera report dated 30-11-1992 rules out the possibility of any poisoning.
16. The doctors on 26-04-1993, submitted the following opinion in writing, which reads as follows:
"After seeking the chemical analysis report of viscera of Mohd. Anees s/o Abdul Gaffar whose post mortem examination was carried out on 20-8-1992, our final opinion is that Mohd. Anees s/o Abdul Gaffar died of syncope as a result of cumulative effect of multiple injuries on body."
On further opportunity being given to the doctors they have come out with a detailed opinion dated 5-5-1993 regarding the post mortem examination of deceased Mohd. Anees, which is also reproduced below:
"A detailed opinion regarding the post mortem examination of the deceased Mohd. Anees s/o Abdul Gaffar (which was carried out by the undersigned doctors) is submitted as under:
On external examination it was found that the skin, nails, face, tongue, lips and conjunctiva were found pale.
The internal examination revealed that abdominal organs such as liver, spleen and kidneys were found pale and the chambers of heart were empty.
All the above mentioned findings in the absence of any poisoning are suggestive of the cause of death being syncope as a result of shock due to cumulative effect of multiple injuries on the body as described in the post mortem report. However there are certain other reasons which can give rise to such type of post mortem findings such as:
(1) A person may die of shock from fright without any marks of violence (due to vaso vagant shock or relex cardiac arrest) Refnc. Modi's Text Book of Medical Jurisprudence Page No. 281, Twenty first edition, Third reprint.
(2) Premortem conditions e.g. heart disease, hypertension, diabetes, mellitus etc. can render the victim more vulnerable to stress reaction.
Refnc. Modi's Text Book of Medical Jurisprudence Page 281, Twenty first edition, Third reprint.
Note: This detailed report is being submitted after seeing the chemical analysis report of viscera on 26-4-1993.
Sd/- doctors."
17. It cannot be disputed that the pathologist performing autopsy must offer best and reasoned opinion that the facts permit. When the circumstances are so clearly indicative as in the instant case that he can justifiably give cause of death other than unascertainalbe , and yet not giving it. It is not only unethical but also being dishonest to the dead. Just have a look at their own positive potential findings. What needs to be emphasised is the necessity of obtaining the best possible history and co-relating the pathological findings or lack of them with all the circumstances. While it is also true that a pathologist performing autopsy should not over speculate where the facts do not warrant it, but in the case at hand there is a whole spectrum of findings recorded by the panel of doctors performing post mortem examination pointing to the degree of certainty so obvious, yet these mighty medical minds without an exception, have opted for, and preferred to remain silent on the cause of death for reasons best known to them.
18. A deliberate calculated silence, where definite conclusive opinion without an element of uncertainty could have been returned. Should one believe that the doctors performing autopsy ought always to bear in mind that even an excellent autopsy can virtually be wasted if the cause of death is withheld (as in the present case).
19. A large number of wounds as noted above, have been found by the doctors, performing autopsy. Yet they are hesitant in coming out with a definite opinion and seeking shelter behind purely academic opinion expressed by Modi in his Text Book. It is not a theoretical opinion sought from them. They are supposed to base their report on positive facts or lack of them. Our prime is the certification of cause of death after autopsy. It was for the reason that the panel was constituted. But what a pity five mighty medical minds were bent upon withholding the opinion in face of their own findings. Findings apart even, lack of such findings as any foreign body or material like dust particles being found in and around the wounded parts of the body even the remote possibility of a traffic accidental death was ruled out. Yet these doctors kept mum for reasons best known to them. By no stretch of imagination could it be the case of sudden or unexpected death, requiring some other pathological processes.
20. There is no finding recorded by the doctors so as to suggest coronary atheroma laminaror (sic) a focal infract or any arterial disease indicating aorotic aneurysm. In absence of such findings and positive potential facts and findings as recorded it is incomprehensible that the doctors could not have given the report. There is absolutely nothing to indicate any injury from physical agents such as electricity and lightning or that from firearms or explosive so as to pose a question of accidental or suicidal death before forensic pathology. In absence of such finding as indicated above, a crucial question that arises for consideration is as to what prevent or deter the team of doctors performing post mortem examination from giving a honest opinion. Almost daily, cases of negligence reports ranging from discrepancies of gross unceptitive towards the patients on the part of the medical professional appearing in their living or appearing in the press.
21-22. It is not the doctors' case that they waited for the chemical examiner's report or they asked for it, till they are actually summoned by the Court. The injuries, as found and noted by them, clearly point to their cumulative effect - death. Both chambers of heart were found empty, no particles of dust or any foreign matter are noted to have been found in or around the wounded parts. Thus, the possibility of traffic accidental death is ruled out. Yet, these doctors kept mum on the cause of death for reasons best known to them. There is no such finding recorded by these doctors so as to suggest any cardio-myopathy or aortic aneurysm. The brain and heart were found as healthy. There is nothing to indicate that it could be an incident of fatal pulonary embolism, coronary thrombosis, cerebral thrombosis or haemorrhage. In face of concrete positive findings, as recorded by them, yet they referring to purely academic opinion in Modi's text book, suggesting neurogenic shock, is hardly of any avail to them.
23. So far as the doctors are concerned, it is a conspiracy of silence, and a telling testimony of readiness at heels, to oblige the authority rather than 'truth' but a lie remains a lie even if chanted as a hymn by five or fifty. It does not become truth.
24. Shockingly the deplorable state of affairs of Law and Order, as revealed by this petition. It is deeply regrettable that a man be put to death unjustly in order to preserve the order, dignity and tranquillity of the state - a state preservable only at such a cost would not be worth preserving. Shri Khan, learned counsel appearing for the petitioner, therefore, contended that Article 21 of the Constitution, has been denuded of all its efficacy and its sanctity, wilfully sacrileged by both police and physicians combined, and claimed exemplary cost by way of compensation to be awarded to the petitioner for the wrong done to him.
25. Placing reliance on cases after cases starting from Rudul Shah's case, 1983 (3) SCC 141, followed by Sebastian Hongray's, 1984 (3) SCC 82, Bhimsingh's, 1985(4) SCC 677, it was urged that it is a fit case for grant of monetary compensation by way of exemplary costs. The Supreme Court, has no doubt held, that in appropriate case the Court has jurisdiction to award damages or compensation for alleged losses, humiliation and indignation suffered by the petitioner.
26. Learned Government Advocate, appearing for the respondents su- bmitted that the petition is full of disputed facts calling for inquiry before any compensation could be awarded.
27. In view of the direction made above, for investigating the case in accordance with law, it would not be proper .for us at this stage to comment any further; lest it prejudices either party. But the question of awarding exemplary cost by way of compensation, can still be considered. In this view of the matter and considering the gravity of the case, to our mind exemplany cost, by way of compensation, of Rs. 1,00,000/- (Rs. One Lac) paid by the respondent-State to the petitioner, would meet the ends of justice. Ordered accordingly. We, however, make clear that it is open to the petitioner to take recourse to the ordinary course of law, for recovery of damages. He can even apply for exemption from payment of Court Fee, if he is so advised and in the event such an application is made, the Court concerned, shall consider it, in accordance with law and with human approach. The above amount shall be taken into account in such a case. It is open to the State to recover the above sum, from those found responsible for perpetrating the crime.
28. The investigation as directed, taking into account the role played by the doctors, in view of the time lapsed, should be completed as early as possible say within three months from today.
29. With this direction, this petition stands allowed with cost of Rs. 1,00,000/- (one Lac). Counsel's fee Rs. 2,500/- (Two thousand five hundred), if certified.