Bombay High Court
Gopal Suresh Desai vs The State Of Maharashtra on 14 January, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
This Order is modified/corrected by Speaking to Minutes Order dated 23/01/2020
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 3048 OF 2019
Gopal Suresh Desai ...Applicant
Versus
The State of Maharashtra ...Respondent
.....
Mr. A.S. Khandeparkar a/w Rajdeep D. Gude a/w Sanjay Gawade i/b
A. Khandeparkar i/b Khandeparkar and Associates, Advocate for the
Applicant.
Mr. H. J. Dedhia, APP for the state-respondent.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 14th January, 2020
PC :
1. The applicant is arrested on 29th June, 2019 in connection with
C.R. No. 188 of 2019 registered with Malvan Police Station, Dist.
Sindhudurg, for offences punishable under Sections 302, 201 r/w 34
of IPC. The FIR was lodged against the applicant (accused No.1),
Suresh Gopal Desai (accused No.2), Suchita Suresh Desai (accused
No.3), Aniket Gopal Desai (accused No.4).
2. The case of the prosecution is as under :-
a) The applicant's marriage was solemnized with the deceased
Kavya Gopal Desai on 14th December, 2016. Out of the said wedlock,
the applicant has a daughter aged of about 7 months named Aarohi.
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b) The FIR is lodged by Reshma Babalal Momin, Police Sub
Inspector attached to Malvan Police Station on 29 th June, 2019. The
complainant has stated that, on 27 th June, 2019, investigation
relating to ADR No. 29 of 2019 under Section 174 of Cr.P.C.
regarding death of Kavya Gopal Desai was given to her. On perusal of
documents the complainant found that, information regarding death
was given by father in law of deceased Suresh Gopal Desai. The
summery of the information provided by Suresh Desai was
incorporated in FIR as follows.
i) On 26th June, 2019 the deceased, her husband, mother-
in-law, father-in-law, uncle of her husband had dinner together. After
having dinner they went to sleep. The deceased along with her
daughter and mother-in-law and accused No.3 Suchita Suresh Desai
went to sleep in Valai of the house. Father-in-law of the deceased was
sleeping in other room of the house. Husband (applicant) and his
uncle were sleeping in room situated near house.
ii) On 27nd June, 2019 at about 6.00 a.m. father-in-law of
the deceased heard his grand daughter Aarohi crying. Hence, he told
his wife Suchita to wake up deceased Kavya. The mother-in-law tried
to wake her but she did not respond. Therefore, the father-in-law
called Dr. Khadilkar to check the deceased Kavya. Dr. Khadilkar after
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examining Kavya declared her dead.
c) Thereafter, the information was provided for regarding inquest
Panchnama. Panch witnesses were called. Spot Panchnama was
recorded. Inquiries were notice on body of deceased. Hence, body
was sent for post mortem on 28th June, 2019. Post mortem was
conducted and body was handed over to father of deceased.
d) Advance Certificate was issued by the medical officer
mentioning the opinion regarding cause of death as "Ligature
Strangulation, however, Viscera is preserved for further chemical
analysis".
e) The first informant have stated that on receipt of the opinion
of the medical officer, the father of the victim and other relatives
were called for further inquiry about the death of the victim. They
were informed that its a case of murder. However, the father of the
victim showed inability to lodge the complaint.
f) Investigation of ADR revealed that deceased was sleeping in
Valai after dinner on 26th June, 2019 with daughter and mother-in-
law. Father-in-law was sleeping in other room and husband
(applicant)and his uncle were sleeping in adjacent house. On 27 th
June, 2019 victim was found dead.
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g) On 28th June, 2019 Post mortem report was received giving
cause of death as "Ligature Strangulation, however, viscera is
preserved for further chemical analysis".
h) The incident had occurred in the house. Husband Gopal,
father-in-law Suresh Desai, mother-in-law Suchita Desai, Uncle of
husband of deceased were present in the house. Person amongst
them have killed deceased.
3. The applicant had preferred an application for bail before the
Sessions Court which is rejected by order dated 5 th October, 2019.
The application of co-accused was allowed vide order dated 25 th
September, 2019. The co-accused Suresh Gopal Desai (Father-in-law
of the victim) Suchita Suresh Desai (Mother-in-law of the victim)
Anil Golap Desai (Uncle of the applicant) were granted bail. While
granting bail to the said accused the Sessions Court had observed
that the allegations against the said accused were that they were
present in the house in night of the incident and allegedly helped
the co-accused. There is no witnesses stating that they were ill
treating the deceased. The father-in-law of the victim had reported
death of kavya to police station and also called Dr. Khadilkar. The
Court also took into consideration the age of the co-accused while
granting bail.
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4. Learned counsel for the applicant submitted that the entire
case is based on circumstantial evidence. The incident had occurred
in the night of 28th and 29th June, 2019. The deceased was sleeping
with her child and her mother-in-law in the Valai of the house. The
other accused were sleeping either in the adjacent room or in the
room situated in the adjacent house. Admittedly, the father-in-law of
the victim called the Doctor, after knowing that Kavya was not
responding to the call of his wife.
5. It is further submitted that the Doctor visited the house and on
examining victim declared her dead. Immediately thereafter, the
police were informed about the incident. The statement of the father-
in-law was recorded. The first informant has stated that the family
members of the victim had refused to lodge the complaint. Hence,
the PSI attached to the said police station was required to lodge the
complaint. It is further submitted that the applicant was sleeping in
the adjacent house. There is no evidence of harassment to victim.
The Post-mortem report indicate that death is due to "Ligature
Strangulation". It is submitted that there is no strong evidence to
indicate that it was a culpable homicide. Learned Counsel referred to
the column relating to external examination in the post mortem
report having reference of Yellow metal. It is submitted that there is
possibility that the victim had suffered cardiac arrest and she had
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sustained injury over the neck due to pressure of Yellow metal. It is
submitted that there are no symptomse of intentional strangulation
to kill the deceased. Post mortem report indicate that the Hyoid bone
was intact no e/o fracture. It is submitted that the there is no motive
to kill the deceased. There are no previous complaints. Learned
Counsel relied upon the excerpts of the opinion in the Modi's Medical
Jurisprudence. He referred to views expressed in chapter relating to
strangulation under topic questions "whether death was caused by
strangulation or whether the strangulation homicide or accidental."
It is submitted that the requisite ingredients to constitute
strangulation as reflected there in are completely absent in the
present case. Applicant is in custody from the date of arrest. There
are no criminal antecedents. Charge-sheet is filed.
6. Learned APP submitted that the offence is of serious in nature.
Post mortem report as well as the advance certificate issued by the
medical officer clearly mentions that the case of death is due to
"Ligature Strangulation". It is submitted that the statement of the
witnesses on record would indicate that relationship between the
applicant and the deceased was not cordial. She was suffering from
herpes zoster (Nagin) and due to marks on her body she was
taunted by the applicant. The statements of the witnesses refers to
the harassment meted out to the deceased by the applicant. Thus,
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the applicant had motive to liquidate the deceased. It is further
submitted that during the visit of the police at the scene of offence
pieces of two electric wires were recovered from the scene of offence.
It is further submitted that the post mortem report in column No.17
mentions that there was evidence of multiple contusions seen over
right side of neck ranging from 0.2cm X 0.2cm to 0.1 cm X 0.1 cm.,
on Cut section blood infiltration seen in underlying tissue, linear
abrasion over dorsum of base of left thumb of 1cm in length reddish
in colour. Before examining the deceased her clothes were changed.
It was revealed during investigation that clothes were thrown in
brooklet. Hence, Section 201 is added. Applicant was disliking his
wife due to marks on her body. Only accused were present in house.
Learned APP also submitted that the accused are required to give
explanation about the cause of death in view of Section 106 of
Evidence Act.
7. I have perused the charge-sheet. The marriage between the
applicant and the victim was solemnized on 14 th December, 2016.
Undisputedly, there are no previous complaints of harassment. Since
victim was not responding to call in the morning, Doctor was called.
Since victim was declared dead, police were informed. ADR enquiry
commenced. The family members did not come forward to give
complaint against accused. Hence, FIR was lodged by police. The
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statement of the father of deceased dated 4th July, 2019 does not
mention that there was any incident of harassment or demand from
the family members of the applicant. He has merely stated that the
victim was known for bearing suffering and probably she must have
not reported such incidents to them. Statement of Smt. Suman
Gawde mentions that she is the neighbour of accused. She used to
visit their house for agricultural work. On 27 th June, 2019 she visited
house of accused on learning about incident of death of Kavya. She
stated that several persons were present in house. Since there was
smell of stool passed by deceased some one said that clothes of
deceased be changed. Hence, clothes were changed and thrown. This
cannot be considered as adverse circumstance against accused. The
other statements recorded during the course of investigation are
vague. The statements of the sister of the victim was recorded on 2 nd
August, 2019 i.e. after one month from incident. She has stated that
in April 2018 victim was told by accused that he should take money
for treatment form father. The material on record to attribute mtive
to commit murder is of weak nature. The victim was sleeping in the
house along with her minor daughter aged about 7 months. Father-
in-law of the victim was sleeping in the adjacent room. Applicant and
the uncle of the applicant sleeping in the adjacent house. The
incident had occurred when all the accused were in the house. The
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prosecution case is some one amongst accused had killed deceased.
Others are granted bail. There is no evidence to indicate that any
accused was seen strangulating the deceased. There is no evidence of
suspicious conduct of applicant or any other family member on the
date of incident and prior to incident. The prosecution heavily relied
upon the post mortem report. The opinion as to probable cause of
death is mentioned as "Ligature Strangulation"
8. Column 17 of Post mortem report is as follows :
"1) Ligature mark present over neck, above the level of
thyroid cartilage extending from right angle of
mandible to back of nape of neck. Ligature mark is
directed downwards from right angle of mandible and
going horizontally from above thyroid cartilage to left
side of neck to nape of neck.
Mark is absent over left side of neck.
Neck. Ligature mark dry, hard, faint brownish.
Neck circumference at the level of thyroid cartilage is
30 cm. Length of ligature mark 23 cm, it maximum
breadth at the level of nape of neck is 3cm and it
breadth on left side of neck is 1.5 cm. Ligature mark is
4 cm from left mastoid process, in the midline it was
5cm below chin & 8 cm above suprasternal notch and
right end at the level of right angle of mandible.
On neck dissection e/w multiple haemorrhages seen in
the dermis, in superficial fascia, in deep fascia and in
the under lying muscles.
E/o petechial haemorrhages seen in underlying the
strap muscle.
Thyroid cartilage intact, no e/o fracture.
Hyoid bone intact, no e/o fracture.
2) Evidence of multiple contusions seen over right side of
neck ranging from 0.2cm to 01cm x 0.1cm. On cut
section blood infiltration seen in underlying tissue.
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3) Evidence of linear abrasion over dorsum of base of left
thumb of 1 cm in length reddish in colour."
9. Learned counsel for the applicant has heavily relied upon
opinion expressed Modi's Medical jurisprudence which reproduced
herein:
" (i) Whether Death was Caused by Strangulation
No inference should be drawn simply from a ligature mark, for
it may be indistinct or absent, if a soft ligature-like silk is used,
and may be produced by the application of a ligature to the neck
even after death. Similar marks may be produced by a collar or
neckband worn loosely round the neck when it compresses the
tissues, which are swollen and distended by putrefaction.
Irregularities in the fingernail marks may pinpoint a killer.
The natural folds of the skin, especially of a stout person,
rarely produce marks on the neck, which may look like those
found after strangulation.
Abrasion and fingernail marks may be produced on the neck
by a person gasping for air in an intoxicated condition or in an
epileptic or a hysterical fit."
To arrive at a conclusion that death was due to strangulation,
it is necessary, therefore, to note the effects of violence in the
underlying tissues in addition to the ligature mark or bruise
marks caused by the fingers or by the foot, knee and other
appearances of death from asphyxia. At the same time, the
possibility of other causes of suboxic or asphxial death should be
excluded.
(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 rightly 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 t a peg in a
wall or to the leg of bed. In such cases, injuries to the deep
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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."
It is also opined that; homicidal strangulation is the
commonest of the three forms. Usually there is a single turn of
ligature round the neck with one or more knots.
10. While distinguishing between hanging and strangulation
Modi's Jurisprudence refers to symptoms of strangulation as follows:
" 1 Mostly homicidal.
2 Fact-Congested, livid and marked with petechiae.
3 Sailva-No such dribbling.
4 Neck-Not so.
5 External signs of asphyxia, very well marked (minimal if
death due to vasovagal and carotid sinus effect).
6 Bleeding from the nose, mouth and ears may be found.
7 Ligature mark-Horizontal or transverse continuous,
round the neck, low down in the neck below the
thyroid, the base of the groove or furrow being soft and
reddish.
8 Abrasions and ecchymoses round about the edges of the
ligature mark, common.
9 Subcutaneous tissues under the mark-Ecchymosed.
10 Injury to the muscles of the neck-Common.
11 Carotid arteries, internal coats ordinarily ruptured.
12 Fracture of the larynx and trachea-Often found alsp
hyoid bone.
13 Fracture-disclocation of the cervical vertebrae-Rare.
14 Scratches, abrasions fingernail marks and bruises on the
fact, neck and other parts of the body - Usually present.
15 Sometimes evidence of sexual assault.
16 Emphysematous bullae on the surface of the lungs -
May be present."
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11. It is submitted that the ligature marks were not seen round the
neck and other symptoms indicates that it is not a case of homicidal
strangulation. Obviously this is not the stage to scan the evidence or
give any definite opinion with regards to the post mortem report or
the medical opinion expressed by the Doctor. However, some factors
which are evident from Post mortem report are that the ligature
mark was absent over left side of neck. No marks of nails of either
side. Thyroid cartilage is intact/No fracture. Hyoid bone intact/No
fracture. Viscera report does not reveal any poisoning. FSL report
regarding Nails of deceased mentions that No blood is detected. The
co-accused were granted bail. Adverse inference is drawn against
applicant, considering that he is husband of deceased and statements
of some witnesses that he was disliking deceased due to marks on
her body since she had suffered skin disease. Section 106 of Evidence
Act is certainly not intended to relieve the prosecution of its burden
of proof. It is designed to meet certain exceptional case in which it
would be impossible or at any rate disproportionately difficult for
prosecution to establish facts which are especially within the
knowledge of accused and which he could prove without difficulty or
inconvenience. In the present case the prosecution has to establish
that is a case of strangulation by accused. It is pertinent to note that
the incident had occurred when all the accused were sleeping in the
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house as stated herein above. It is not the case of the prosecution
that any harassment was meted out in the past. No previous
complaint. There is nothing to indicate that wire found in the house
was used for strangulating the deceased. Considering these
circumstances and the fact that the applicant is in custody from the
date of arrest, further detention of the applicant is not called for. Bail
can be granted.
12. Hence, I pass the following order :
ORDER
i) Bail Application No. 3048 of 2019 is allowed;
ii) The applicant is directed to be released on bail in connection with C.R. No. 188 of 2019 registered with Malvan Police Station, Dist. Sindhudurg, on furnishing P.R. bond in the sum of Rs. 25,000/- with one or more sureties in the like amount;
iii) The applicant shall report Malvan police station once in a month on every first Saturday between 10.00 am. to 12.00 noon till further order.
iv) Bail Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.) ::: Uploaded on - 21/01/2020 ::: Downloaded on - 09/06/2020 10:02:48 :::