IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No.599 of 1997 For Approval and Signature: HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MANOJKUMAR OMPRAKASH BATRA (PUNJABI) & ANR. Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 599 of 1997 MR KJ SHETHNA for Appellants MR KC SHAH, APP for Respondent -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.M.PANCHAL and HON'BLE MR.JUSTICE M.C.PATEL Date of decision: 23/12/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Instant appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 ("the Code" for short) is directed against judgment dated April 29, 1997 rendered by the learned Additional Sessions Judge, Nadiad, in Sessions Case No.157 of 1996 by which the appellants are convicted under Section 302 read with 114 as well as Section 498A read with 114 of Indian Penal Code ("IPC" for short) and each sentenced to suffer R.I. for life and fine of Rs.2,000=00, in default, R.I. for one year for commission of offence punishable under Section 302 read with 114 IPC as well as R.I. for one year and fine of Rs.1,000=00, in default, R.I. for six months for commission of offence punishable under Section 498A read with 114 IPC. 2. The facts emerging from the record of the case are as under : Complainant Mahendrabhai Ramprakash Khurana is residing at 857/7, S.D.College Road, Krishna Textiles Street, Panipat, Haryana, and is dealing in clothes in the name and style of "Handloom Trading Company" with his father and brother. Name of his younger sister was Jyotiben, who was married to the appellant No.1. The marriage between deceased Jyotiben and the appellant No.1 was solemninzed on April 13, 1995 at Nadiad. After marriage, they started living married life together at Nadiad. About one month after the marriage, Jyotiben visited her parental house situated at Panipat, Haryana, and informed her brother Mahendrabhai that the appellants were scolding her over trivial matters, but she was not giving any reply to the appellants and that the appellant No.1 was beating her off and on. After staying at Panipat for sometime, deceased Jyotiben returned to her matrimonial home. On phone, she used to inform Mahendrabhai and her parents that the appellant No.1 was beating her often. During the subsistence of her marriage with the appellant No.1, the deceased gave birth to a boy. To attend naming ceremony of the child, Mahendrabhai with his younger sister Harjeet came to Nadiad on February 4, 1996. After the naming ceremony of the child was over on February 5, 1996, Mahendrabhai wanted to visit house of husband of his mother's sister situated at Anand with Jyotiben. Deceased Jyotiben, therefore, sought permission of the appellant No.1 to go with her brother, but the appellant No.1 dragged her in a room and beat her. Mahendrabhai asked the appellant No.1 as to why his sister was beaten, but the appellant No.1 did not give any explanation at all whereas the deceased informed that she was being beaten invariably by the appellant No.1 once in a week, and that she was also being harassed by the appellant No.2, and that acquitted accused Omprakash, who was father-in-law of deceased Jyotiben, was siding with them and scolding her. On February 6, 1996 Mahendra and his younger sister Harjeet visited the house of husband of his mother's sister at Anand. His mother's sister Neeruben also informed him that the appellant No.1 and father-in-law as well as mother-in-law of Jyotiben were beating Jyotiben often, and harassing her. Neeruben also informed Mahendrabhai that maternal aunt of the appellant No.1 was instigating mother-in-law of Jyotiben as a result of which, mother-in-law of Jyotiben was harassing her. On February 7, 1996, Mahendrabhai in the company of his two sisters and nephew came to Panipat where deceased Jyotiben stayed for one-and-a-half month and that deceased Jyotiben narrated harassments caused to her, to her parents. Four days prior to March 22, 1996, the appellant No.1 came to Panipat to bring deceased Jyotiben to her matrimonial home and left Panipat for Nadiad on March 22, 1996. Thereafter, the parents of deceased Jyotiben came to Nadiad from Panipat on March 29, 1996 in order to speak to the appellants and others about the ill-treatment and beating of Jyotiben. The mother of the complainant returned to Panipat on April 4, 1996 whereas his father proceeded to Calcutta on business. In order to inquire after deceased Jyotiben, Mahendrabhai made several telephone calls from Panipat, and Jyotiben informed him that the appellant No.1 was still beating her whereas her mother-in-law and maternal aunt of the appellant No.1 were kicking up rows and harassing her. About a week prior to April 25, 1996 Mahendrabhai made telephone call to Jyotiben who informed him that because of kidney stone, the appellant No.1 had taken her to dispensary, but after bringing her home, she was mercilessly beaten by the appellant No.1 and that she was fed up with them. It was also informed by deceased Jyotiben to Mahendrabhai that she was intimidated by the appellants by saying that she must do as ordered by them. Mahendrabhai on hearing this, solaced Jyotiben by saying that he would come to fetch her whereupon Jyotiben asked Mahendrabhai not to come to Nadiad and expressed a hope that the appellants would mend their way, and she would be able to live in peace. On April 24, 1996 Mahendrabhai telephoned at Nadiad whereupon he was informed that all the members of the appellant No.1 had gone to attend marriage in a nearby village. On April 25, 1996, brother of father-in-law of deceased Jyotiben, i.e. Parmandbhai, informed Mahendrabhai on phone that Jyotiben had suddenly taken ill and died. Mahendrabhai called back at the house of Rukmaniben, a neighbour of the appellant No.1, and asked the person receiving the call to summon Jyotiben as he wanted to talk with Jyotiben, but again phone was attended by Parmanand, and Mahendrabhai was informed that Jyotiben had hung from fan and died. Before leaving for Nadiad, Mahendrabhai wanted to verify as to whether his sister Jyotiben died by hanging and, therefore, contacted City Control Room, Ahmedabad, which, in turn, tried to know from Nadiad Town Police Station, whether any incident regarding death of deceased Jyotiben by hanging was registered at the said Police Station or not. After making necessary entry in the register maintained at the police station about inquiry sought to be made by City Control Room, Ahmedabad, one Head Constable named Gokalbhai was sent to the residence of the appellants. The Head Constable brought Omprakash, i.e. original accused No.2 at the Police Station. Omprakash informed PI of Nadiad Police Station that the deceased had committed suicide. The information given by Omprakash was registered as Accidental Death Case No.15 of 1996 and investigated by Mr.P.V.Vyas, who was then PI of the Police Station. The Police Inspector wrote a yadi to Sub-Divisional Magistrate, Nadiad, to hold inquest on the dead body of the deceased, and accordingly inquest was held by the Sub-Divisional Magistrate, Nadiad, on the dead body of the deceased in presence of panch witnesses on April 26, 1996 between 8.00 a.m. and 9.15 a.m. The Investigating Officer also drew panchnama of place of occurrence on April 26, 1996 between 9.30 a.m. and 11.15 a.m. and made arrangements for sending dead body of the deceased for postmortem examination. The cause of death of the deceased indicated in the postmortem examination was "cardio respiratory arrest due to asphyxia due to strangulation". Mahendrabhai in the company of his mother, uncle and others came to Nadiad at 1.30 p.m. on April 26, 1996 and went to matrimonial home of deceased Jyotiben. There they learnt that dead body of deceased Jyotiben was removed to Civil Hospital, Nadiad, for postmortem examination. Therefore, Mahendrabhai in the company of his uncle and friends went to Civil Hospital. At the Civil Hospital, he found that postmortem examination of deceased Jyotiben was completed and that there were marks of strangulation on the body of deceased Jyotiben. Mahendrabhai learnt that the deceased was strangulated to death by the appellants. Therefore, he lodged his complaint against the appellants and two others with Dy.S.P. of Nadiad regarding murder of his sister Jyotiben. Subsequently, on April 26, 1996, the Dy.S.P. Nadiad handed over the complaint of Mahendrabhai to Mr.Vyas for investigation. Mr.Vyas recorded statements of those persons who were found to be conversant with the facts of the case. During the course of investigation, the appellants and two others were arrested. 3. On completion of investigation, the appellants and two others were chargesheeted in the Court of the learned Chief Judicial Magistrate, Nadiad, for commission offences punishable under Section 302 read with 114 IPC as well as Section 498A read with 114 IPC. As the offence punishable under Section 302 IPC is exclusive triable by a Court of Sessions, the case was committed to Sessions Court, Kheda, for trial where it was numbered as Sessions Case No.157 of 1996. The learned Additional Sessions Judge, Nadiad, to whom the case was made over for trial, framed charge against the appellants and others at Exh.4. It was read over and explained to the accused, who pleaded not guilty to the same, and claimed to be tried. The prosecution, therefore, examined: (1) Mahendrakumar Ramprakash Khurana as P.W.-1 at Exh.10; (2) Darshanaben Ramprakash Khurana as P.W.-2 at Exh.11; (3) Dr.Harishchandra Manmohan Thakore as P.W.-3 at Exh.12; (4) Neeruben Hitendrakumar Parmanand as P.W.-4 at Exh.17; (5) Khushiram Maganbhai Madhvani as P.W.-5 at Exh.20; (6) Nanakbhai Shobhrajbhai as P.W.-6 at Exh.23; (7) Bhalabhai Rambhai Parmar as P.W.-7 at Exh.26; (8) Sanjaybhai Bhagwandas Vajani as P.W.-8 at Exh.30; (9) Rukshmaniben Lilaram Tolani as P.W.-9 at Exh.31; (10) Dy.S.P. Prabhatsinh Vaghajibhai Bariya as P.W.-10 at Exh.32; and, (11) Investigating Officer Prakashchandra Vasudev Vyas as P.W.-11 at Exh.34, to prove its case against the accused. The prosecution also produced documentary evidence such as postmortem notes of deceased Jyotiben at Exh.15; panchnama indicating seizure of clothes of deceased at Exh.18; arrest panchnama of accused at Exh.19; inquest report at Exh.21; panchnama of place of incident at Exh.22; complaint lodge by Mahendrabhai at Exh.33; entry dated April 25, 196 made at Nadiad Police Station pursuant to information received from City Control Room, Ahmedabad, at Exh.35, etc. in support of its case against the accused. The defence of the accused was that the deceased had committed suicide by hanging, and to support this defence, they got produced on record pages No.202 and 203 from book of Medical Jurisprudence by Dr.Modi, at Exh.16. 4. After recording of evidence of prosecution witnesses was over, the learned Judge explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required by Section 313 of the Code. In further statement, case of each of the accused was that a false case was filed by the prosecution. However, no defence evidence was adduced by any of the accused. 5. On appreciation of evidence led by the prosecution, the learned Judge held that it was proved by the prosecution beyond reasonable doubt that deceased died a homicidal death. According to the learned Judge, at the time of incident, the appellants were with the deceased at the house of the appellant No.1 and had motive to commit murder of the deceased. The learned Judge, therefore, held that the appellants were liable to be convicted under Section 302 read with 114 IPC. It was also noticed by the learned Judge that the deceased was subjected to cruelty by the appellants and, therefore, they were liable to be convicted under Section 498A read with 114 IPC. However, the learned Judge found that no convincing evidence was produced by the prosecution to establish that original accused Nos.2 & 4 had abetted the commission of offence by the appellants punishable under Sections 302 and 498A IPC. In view of abovereferredto conclusions, the learned Judge has convicted the appellants under Section 302 read with 114 IPC as well Section 498A read with 114 IPC and imposed sentences referred to earlier whereas acquitted original accused Nos.2 and 4, by judgment dated April 29, 1997, giving rise to instant appeal. 6. Mr.K.J.Shethna, learned counsel of the appellants, contended that the evidence on record does not conclusively establish that the deceased was strangulated to death whereas commission of suicide by the deceased is not ruled out and, therefore, the appeal should be accepted. It was argued that the chit recovered from the place of incident and written by the deceased would indicate that the deceased had committed suicide, but she was not murdered and, therefore, the impugned judgment should be set aside. It was stressed that no satisfactory evidence could be adduced against the original accused Nos.2 and 4 and as the evidence adduced against the appellants is of weak nature, their conviction under Section 302 read with 114 IPC should be set aside by this Court. Further, it was argued that the circumstances brought on record by the prosecution do not unerringly establish that murder of the deceased was committed by the appellants and, therefore, the appeal should be accepted. It was pleaded that even if the Court comes to conclusion that the circumstances brought on record are sufficient to establish the guilt against the appellant No.1, no cogent evidence is adduced by the prosecution on the basis of which conviction of the appellant No.2 can be sustained and, therefore, in any view of the matter, the appeal filed by her should be accepted by this Court. It was also argued that if the Court accepts the evidence adduced by the prosecution regarding cruelty meted out to the deceased, at the best, offence committed by the appellant No.1 would be one punishable under Section 306 IPC and the appellant No.1 would be liable to be sentenced to R.I. for ten years, which sentence he has already undergone and, therefore, after setting aside the impugned judgment, the appellant No.1 should be set at liberty. The learned counsel for the appellant emphasised that the learned Judge of the trial Court has misappreciated the evidence on record and, therefore, the appeal should be allowed. 7. Mr.K.C.Shah, learned Additional Public Prosecutor appearing for the State, contended that the testimony of Medical Officer Dr.Thakore recorded at Exh.12 read with contents of postmortem notes unerringly establishes that the deceased died a homicidal death and, therefore, the finding recorded by the learned Judge of the trial Court being eminently just, should be upheld by this Court. It was argued that the panchnama of place of incident also rules out suicide by the deceased and, therefore, the finding recorded by the learned Judge of the trial Court that it is proved by the prosecution beyond reasonable doubt that the deceased died a homicidal death should not be interfered with by this Court. According to the learned Additional Public Prosecutor, both the appellants were staying with the deceased in the house of the appellant No.1 whereas the evidence of the complainant and others would show that the appellants were beating the deceased as well as subjecting her to cruelty, and as the prosecution has proved the motive for commission of crime, both the appellants should be held guilty under Section 302 IPC. What was maintained by the learned Additional Public Prosecutor before the Court was that a false defence that the deceased committed suicide by hanging was sought to be projected which is a circumstance against them and in view of other circumstances established by the prosecution, the conviction of the appellants under Section 302 IPC read with 114 IPC cannot be regarded as erroneous. According to the learned Additional Public Prosecutor, no explanation worth the name was given by any of the appellants about happening of incident or regarding incidents of beating to the deceased by the accused and, therefore, both the appellants should be held guilty under Section 302 IPC read with 114 IPC in view of the medical evidence and other evidence on record, which shows that the deceased died a homicidal death. The learned Additional Public Prosecutor pleaded that cogent and convincing reasons have been recorded by the learned Judge of the trial Court for convicting the appellants under Section 302 IPC read with 114 IPC and as the learned advocate of the appellants has failed to dislodge them, the appeal should be dismissed. 8. This Court has heard Mr.K.J.Shethna, learned counsel of the appellants, and Mr.K.C.Shah, learned Additional Public Prosecutor, at length and in great detail. This Court has also undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record with reference to broad and reasonable probabilities of the case. 9. Before considering the criminal liability, if any, of the appellants, it would be relevant to determine whether deceased Jyotiben died a homicidal death or suicidal death because the prosecution case is that she died a homicidal death whereas the case of the appellants is that she died a suicidal death. 9.1 Dr.Harishchandra Manmohan Thakore, who was Medical Officer, Civil Hospital, Nadiad, and who had performed autopsy on the dead body of the deceased, is examined as P.W.3 at Exh.12. His testimony would show that he had received dead body of the deceased on April 26, 1996 for postmortem examination along with yadi sent by the Executive Magistrate, Nadiad, and that autopsy on the dead body of the deceased was performed by a panel of two doctors. The witness has mentioned that another doctor, who had also participated in the postmortem examination of the deceased, was Dr.D.M.Bhaderiya. According to the Medical Officer, dead body of the deceased was identified by Omprakash, i.e. original accused No.2. The witness in his testimony before the Court has stated that the dead body of the deceased was well-built and cold and that rigor mortis was present on both the lower limbs. It is further mentioned by him that PM lividity was present on depending part of back, waist, thigh, etc. and eyes were found to be closed, but on opening, subconjunctival hemorrhage was found to be present, whereas pupils were found to be dilated. It is mentioned by the doctor that bleeding from nose was found whereas mouth was found to be partially opened and tongue was protruding between teeth and there was engorgement of vein of face and neck, whereas petechial hemorrhages were seen on face particularly on both cheeks. 9.2 According to the Medical Officer, following external injuries were noticed by him while performing postmortem examination on the dead body of the deceased:- a. A horizontal yellowish brown, dry, hard, groove (depression, ligature mark) like parchment seen on the middle part of neck at front and both side of the neck. No mark seen on the back. Abrasion and ecchymosis seen at the edges. In subcutaneous tissue ecchymosis present. Neck muscles bleeding present and torn beneath the ligature mark. Vertical fracture about 2 cms x through and through present on upper region of thyroid cartilage corresponding to ligature mark. Vertical fracture of tracheal ring through and through present corresponding ligature mark. Tracheal wall deeply congested with sub mucous ecchymosis present. 9.3 On internal examination, following injuries were found by the Medical Officer:- a. Meninges and brain were found congested whereas both the lungs were deeply congested and oedematous whereas on cut, dark blood stained frothy mucous discharged was seen. b. Pericardium was congested and petechial hemorrhage was seen. Left chambers of heart were found to be empty whereas right chambers were full of blood. c. Liver, gallbladders, duodenum, spleen, kidneys were found congested. According to the Medical Officer, death of the deceased could have occurred within four to six hours of last meal and within twenty-four hours of postmortem examination with a margin of six hours on either side. What is asserted by the doctor before the Court is that the cause of death of the deceased was cardio respiratory arrest due to asphyxia due to strangulation. It is further stated by the doctor in his testimony that the injuries mentioned by him in Column No.17 of postmortem notes were sufficient in ordinary course of nature to cause death of the deceased. The medical officer produced post-mortem notes of the deceased at Exh.15. In his examination-in-chief, the doctor has mentioned that postmortem was jointly conducted by him and Dr.Bhaderia and that additional Annexure-II to the postmortem notes indicating external injuries noticed on the dead body of the deceased was signed by both of them. In his cross-examination, it is stated by him that impression of ligature marks would vary as per material used and that he has not mentioned in his postmortem notes the depth of ligature mark. It was admitted by him that depth of ligature mark would depend upon material used, but it was asserted by him that it was not true to say that depth of ligature mark would be more if material used was hard one. According to him, breadth of the ligature mark would depend upon breadth of material used. The suggestion made by the defence that there must be superficial marks if muddamal articles No.4 & 5 were used as ligatures, was denied by him, and it was assertively stated that if saree is used as ligature, it is not necessary that material would be bloodstained. The suggestion made by the defence that there were abrasions on the ligature marks and, therefore, hard material was used, was denied by him. According to the Medical Officer, if saree was used as ligature, there was little possibility of abrasions taking place. It was also admitted by him that no marks of struggle were found on the body of the deceased. The suggestion made by the defence that if body is well-built and there is absence of struggle mark, there will be no possibility of strangulation, was emphatically denied by him. It was asserted by the Medical Officer in his cross-examination that in case of strangulation, if there is stoppage of oxygen for three to four minutes, brain death would be caused, but he could not say for certain that in how many minutes, the deceased must have died. According to the Medical Officer, he had noticed ligature marks below skin on tissue dissection. What is asserted by the doctor during his cross-examination is that he had not found that the neck of the deceased was stretched and elongated. The suggestion made by the defence that find of elongated neck suggests hanging, was emphatically denied by him. He was confronted with the commentary on pages 202 & 203 from 1993 Edition of Medical Jurisprudence by Modi and he has stated that he was agreeing with the same. However, after looking to the difference between hanging and strangulation, as given in the tabular form on page 203, the suggestion made by the defence that this was a case of hanging and not of strangulation was emphatically denied by him. This is all what transpires from the testimony of the Medical Officer. 10. The plea that homicidal death of deceased Jyotiben is not proved by the prosecution, whereas probability of the deceased having committed suicide is not ruled out and, therefore, the conviction of the appellants recorded under Section 302 read with 114 IPC should be set aside, is devoid of merits and cannot be accepted. 10.1 Autopsy (autos = self; opis = view) literally means to see for oneself. Medicolegal autopsy (necropsy) or postmortem examination (necros = dead, opis = view; post = after, mortem = death) is a special type