IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 793 of 1996 with MISC. CRIMINAL APPLICATION No 11927 of 2004 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? -------------------------------------------------------------- RAJENDRAPRASAD CHOTHMAL AGRAWAL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 793 of 1996 MS RV ACHARYA for Appellant MR BM MANGUKIYA for Appellant MR KC SHAH, APP for Respondent 2. Misc. Criminal Application No.11927 of 2004 MR BM MANGUKIYA for Petitioner 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: 27/12/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE J.M.PANCHAL) Criminal Appeal No.793 of 1996, filed under Section 374(2) of the Code of Criminal Procedure, 1973, is directed against judgment dated August 27, 1996 rendered by the learned Additional Sessions Judge, Panchmahals at Godhra in Sessions Case No.230 of 1995 by which the appellant is convicted of the offences punishable under Sections 302 and 201 I.P.C. and sentenced to suffer R.I. for life for commission of offence punishable under Section 302 as well as R.I. for one year for commission of offence punishable under Section 201 I.P.C.. It may be mentioned that the learned Judge has directed that the substantive sentences shall run concurrently. 2. Miscellaneous Criminal Application No.11927 of 2004 is filed under Section 389 of the Code of Criminal Procedure, 1973 by which the applicant has prayed to recall Dr. Chimanbhai Bijiyabhai Charel, who was examined by the prosecution as p.w.1 at Exh.16, and re-examine him to enable the court to have clear medical evidence on record before concluding whether the death of the deceased was homicidal or suicidal. 3. The facts emerging from the record of the case are as under: 3.1 Deceased Rekha was originally resident of Lohamandi of Indore City, Madhya Pradesh. Name of her mother is Prembai. Her marriage with the appellant was solemnised on April 27, 1995 at village Fatehpura. After marriage, she was residing at village Fatehpura with her husband, mother-in-law, father-in-law and Kamlesh, who is younger brother of the appellant. It may be stated that the appellant is running a grocery shop at village Ukhareli, Taluka Santrampur. On May 1, 1995, the deceased went to her parental house. On May 8, 1995, the appellant went to bring her back to her marital home and, therefore, Prembai sent her with the appellant. 3.2 The incident in question took place on July 11, 1995. On July 11, 1995, the appellant lodged an information with P.S.I. Mr. P.F. Gohil who was then in charge of Fatehpura Police Station, mentioning inter-alia that 15 days prior to the date of incident, the deceased talked to the appellant to reside separately from her father-in-law, mother-in-law and brother-in-law but the appellant did not agree to the said proposal whereupon the deceased informed him that she would go to her parental house and made preparations for going to her parental house but she was informed by the appellant that yesterday a letter from her uncle Mohanlal was received mentioning that he was to go to village Fatehpura in the first week of July and that she should go to her parental house in the company of her uncle. It was stated by the appellant in the said information that the suggestion made by him was accepted by the deceased without reservations and the deceased took her evening meals at about 10.00 p.m. The appellant averred that thereafter he, in the company of the deceased, went to the 'vada' situated on the rear of his house for the purpose of sleeping whereas his parents, brother and sister were sleeping in the front portion of his house. The claim made by the appellant in the said information was that the deceased got up at about 5.00 a.m. and woke him whereas his parents, who were already awaken, were brushing their teeth on the 'otla' of the house and when he got up at about 5.30 a.m., he noticed that the deceased was preparing tiffin for him by kneading flour. It was also mentioned by him in his information that he thereafter visited toilet and came out at about 6.45 a.m. and found that from the bathroom situated near the water tank, smoke was coming out. According to him, he found that the bathroom was closed from inside and he could see through the grill that his wife Rekha was lying on the floor of the bathroom in a burnt condition and her clothes were burning. It was mentioned by the appellant in the information that thereupon, he raised shouts as a result of which, his parents and his brother rushed near the bathroom and after opening door of the bathroom, found that the deceased had received burn injuries all over her body and was dead. It was further claimed by the appellant that the burning clothes were extinguished from which kerosene was smelling and after bringing out her dead body from the bathroom, Kishan Chothmal who is another brother of the appellant was informed whereas relatives of his wife Rekha were informed on telephone. It was mentioned by the appellant in the information that the deceased committed suicide as he did not agree to her suggestion to reside separate from his parents and brother. The information mentioning above facts was lodged by the appellant at 10.45 a.m. with P.S.I. Pramodsinh F. Gohil who was then in charge of Fatehpura Police Station. The information lodged by the appellant was registered as A.D. No.6 of 1995 under Section 174 of the Code of Criminal Procedure, 1973 and S.D.P.O. Lunawada was informed about the same by wireless message. Thereafter, Mr. Gohil went to the place of incident and held inquest on the dead body of the deceased. Necessary arrangement was made by him to send the dead body of the deceased for post-mortem examination. Mr. Gohil also drew panchnama of the place of incident and seized certain articles for investigation from the spot. He also recorded statements of father-in-law, mother-in-law, sister-in-law and brother-in-law of the deceased. Meanwhile, S.D.P.O. Mr. S.K. Dave arrived at the place of incident and, therefore, further investigation undertaken, pursuant to information given by the appellant, was handed over to Mr. Dave. Mr. Dave recorded statements of those persons who were found to be conversant with the facts of the case. 3.3 Meanwhile, Mohanlal, who is uncle of deceased Rekhaben, received a telephonic call informing him that the deceased committed suicide. Therefore, Prembai, in the company of Mohanlal and others, came to Fatehpura. After coming to Fatehpura, Prembai and others learnt that the dead body was sent for post-mortem examination and, therefore, went to hospital. At the hospital, they learnt that the deceased was strangulated. 3.4 Autopsy on the dead body of the deceased was conducted by a panel of three doctors comprising Dr. C.B. Charel, Dr. S.M. Palas and Dr. M.C. Bhedi. After conducting post-mortem examination, the three medical officers issued certificate indicating cause of death of the deceased to be Asphyxia due to strangulation. The statement of mother of the deceased recorded by Mr. Dave indicated that the deceased was subjected to cruelty by the appellant and his relatives. The cause of death also made it clear that the appellant and others had caused disappearance of evidence of murder of the deceased. Under the circumstances, S.D.P.O. Mr. Dave himself became complainant and lodged complaint against the appellant and his relatives for commission of offences punishable under Sections 302, 201, 498-A read with 114 I.P.C. While in custody, the appellant made disclosure statement pursuant to which, stick, rope, plastic mug etc. were discovered from the 'vada' of the house. On completion of investigation, the appellant and four others were chargesheeted in the court of learned Judicial Magistrate First Class, Santrampur for commission of offences punishable under Sections 498 read with 34 I.P.C., 302 read with 34 I.P.C. and 201 read with 34 I.P.C. As the offence punishable under Section 302 is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Panchmahals at Godhra for trial where it was numbered as Sessions Case No.230 of 1995. 4. The learned Additional Sessions Judge, Panchmahals at Godhra, to whom the case was made over for trial, framed necessary charge against the accused 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) Dr. Chimanbhai Bijiyabhai Charel as p.w.1 at Exh.16, (2) Prembai Subhasinh as p.w.2 at Exh.18, (3) Mohanlal Dorilal as p.w.3 at Exh.21, (4) Taradevi Kishanlal as p.w.4 at Exh.25, (5) Lalchand Devchand as p.w.5 at Exh.26, (6) Aiyubbhai Rasoolbhai Ghanchi as p.w.6 at Exh.30, (7) Dhirajlal Gulabchand as p.w.7 at Exh.31, (8) Kailasben Udesinh as p.w.8 at Exh.34, (9) Pramodsinh Fatesinh Gohil as p.w.9 at Exh.35 and (10) Sureshkumar Kantilal Dave as p.w.10 at Exh.46. to prove its case against the accused. The prosecution also produced documentary evidence such as post-mortem notes of the deceased at Exh.17, letter addressed by the deceased, letter addressed by witness Mohanlal to deceased Rekha, inquest report at Exh.27, panchnama of place of occurrence at Exh.28, panchnama indicating seizure of clothes of the deceased at Exh.29, panchnama prepared at the time of arrest of the accused at Exh.32, panchnama indicating discovery of stick, rope, plastic mug etc. pursuant to disclosure statement made by the appellant at Exh.33, complaint lodged by the appellant disclosing accidental death of the deceased at Exh.36, map of the place of incident at Exh.45, complaint lodged by S.D.P.O. Mr. Dave against the accused at Exh.41 etc. in support of its case against the accused. 5. 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 prosecution witnesses and recorded their further statements, as required by Section 313 of the Code of Criminal Procedure, 1973. In their further statements, the case of all the accused was that deceased Rekha had committed suicide but hue and cry was raised by people of village Fatehpura as well as Advocate Upadhyay, who was a politician and, therefore, false case was filed by the police against them and that they were falsely involved in the case. However, no evidence was adduced by any of the accused to substantiate this defence. 6. After hearing the parties, the learned Judge closely scrutinised the evidence tendered by Dr. Charel as well as contents of post-mortem notes produced on the record of the case and concluded that the deceased had not committed suicide but she was done to death by strangulation. The learned Judge thereafter considered the circumstances appearing from the evidence on record namely that, (1) false information was conveyed by the appellant to the police that the deceased had committed suicide; (2) the deceased was in the company of the appellant and the appellant had every opportunity to commit her murder; (3) the contents of panchnama of place of incident indicated that it was not possible to close the bathroom from inside and petticoat and green-coloured sari kept on stand were found to be intact and (4) the testimony of mother and uncle of the deceased read with contents of letter at Exh.42 established that the deceased was subjected to cruelty by the appellant. After noticing abovereferredto circumstances, the learned Judge held that they were conclusive in nature and established that in all human probability, the murder of the deceased was committed by the appellant but no reliable evidence was led by the prosecution against the other accused. The learned Judge also found that after committing murder of the deceased, her dead body was set on fire by the appellant with a view to causing disappearance of evidence of murder and, therefore, the appellant was guilty under Section 201 I.P.C. In view of abovereferredto conclusions, the learned Judge has convicted the appellant under Sections 302 and 201 I.P.C. and imposed sentences, referred to earlier, by judgment dated August 27, 1996 giving rise to instant appeal. 7. Mr. B.M. Mangukiya, learned counsel of the appellant contended that post-mortem report of the deceased is signed by two doctors, though autopsy on the dead body of the deceased was performed by a panel of three doctors and, therefore, cause of death of the deceased, as mentioned in the post-mortem notes to be Asphyxia due to strangulation, should not be accepted by the court. It was argued that inquest on the dead body of the deceased was held in the presence of panchas wherein a specific opinion is expressed to the effect that death of the deceased was due to burns and as the opinion about the death of the deceased expressed in the inquest report differs from that expressed in the post-mortem notes, the post-mortem notes should not be relied upon for the purpose of coming to the conclusion that the deceased died due to strangulation. According to the learned counsel of the appellant, though the dead body of the deceased was received for post-mortem examination on July 11, 1995 at 3.15 p.m., the autopsy on the dead body was performed on July 12, 1995 between 8.30 a.m. and 11.30 a.m. and as delay in performing autopsy is not explained at all, the post-mortem notes should not be given undue importance while ascertaining the fact whether the deceased died a homicidal death or a suicidal death. The learned counsel maintained that fracture of greater horn of thyroid cartilage would not necessarily show that there was Asphyxia due to strangulation and, therefore, the learned Judge of the Trial Court should have held that it was not proved by the prosecution that the deceased died because of Asphyxia due to strangulation. The learned counsel for the appellant extensively quoted passages appearing on pages 310, 311, 313, 314, 315, 316, 317, 319 and 333 from MODI's MEDICAL JURISPRUDENCE AND TOXICOLOGY TWENTY-SECOND EDITION and argued that Second degree burns comprise acute inflammation and blisters produced by prolonged application of a flame etc. whereas Third degree burns refers to the destruction of the cuticle and part of the true skin which appears horny and dark, owing to it having been charred and shrivelled whereas persons removed from houses destroyed by fire are often found dead from suffocation due to the inhalation of smoke, carbon monoxide and other irrespirable gases and as the heat received by the deceased was very great, cracks and fissures resembling incised or lacerated wounds, several inches long had occurred in the skin and tissues which would not show that incised wounds and lacerated wounds were post-mortem and, therefore, the post-mortem report should be ignored from consideration. It was maintained that if the body, of a victim dying of thermal burns, continues to remain exposed to flame and intense heat, some or all of the ante-mortem burns covering the body of such a victim, may exhibit the appearance of post-mortem burns as a result of which, the opinion expressed in the post-mortem notes of the deceased to the effect that the burns were post-mortem should not be relied upon by this court while deciding the question whether the deceased died a homicidal or suicidal death. It was asserted by the learned counsel of the appellant that the results found during the post-mortem examination established that the deceased must have been alive during the fire and, therefore, the learned Judge of the Trial Court was not justified in concluding that the burn injuries noticed on the deceased were post-mortem in nature. It was emphasised that in the case of a burn caused during life, a line of redness involving the whole true skin is formed around the injured part and as there was a line of redness involved in the whole true skin, it should have been held that the burn injuries were not post-mortem. It was pleaded that bruises or contusions are injuries which are caused by a blow from a blunt weapon, such as a club, whip, iron bar, stone, ball, fingers, fist etc. or by a fall, or by crushing or compression and these are accompanied by painful swelling and crushing or tearing of the subcutaneous tissues without solution of continuity of the skin and as bruises or contusions could not have been detected on the dead body of the deceased who had sustained 2nd degree and 3rd degree burns, it should have been held that homicidal death of the deceased was not proved by the prosecution. The learned counsel of the appellant maintained that in the inquest report, it is mentioned that the face of the deceased was black and, therefore, doctors who had performed autopsy on the dead body of the deceased should have tried to find out whether there were carbon particles in the trachea or not and as proper tests were not conducted before expressing opinion to the effect that the deceased died due to strangulation, the post-mortem notes should be ignored from consideration. The learned counsel argued that testimony of Prembai, which is sought to be relied upon by the prosecution for proving so-called extra-judicial confession made by the appellant before her and another witness, is full of inconsistencies as well as contradictions and, therefore, the learned Judge of the Trial Court was not justified in placing reliance on the testimony of the said witness while determining the guilt or otherwise of the appellant. It was pleaded that so also the evidence tendered by witness Mohanlal, witness Taradevi and witness Lalchand does not support the prosecution case at all and, therefore, the conviction of the appellant cannot be regarded as a legal one. It was stressed that as several relevant aspects of the matter were not brought on record during the course of cross-examination of the doctor who had deposed before the court, Miscellaneous Criminal Application should be allowed for the reasons stated therein and after re-calling him, his further evidence should be recorded to find out correct cause of death of the deceased. It was asserted that the learned Judge of the Trial Court has failed to appreciate the evidence on record in its true perspective and, therefore, the appeal should be allowed. 8. Mr. K.C. Shah, learned counsel of the State Government contended that though post-mortem note is signed by two doctors, the certificate indicating cause of death of the deceased, which was supplied to the appellant alongwith other papers while submitting report under Section 173 of the Code of Criminal Procedure, 1973, indicates that the same is signed by three doctors and, therefore, it is wrong to contend that the opinion expressed in the post-mortem report about the cause of death of the deceased should not be taken into consideration by the court. It was argued that it is not the case of the defence that the third doctor who has not signed the post-mortem note had expressed any differing opinion about the cause of death of the deceased at all and, therefore, non-signing of post-mortem notes by the third doctor is of no consequence. It was submitted that after noticing several features, which would normally be present in a case of death by strangulation, Dr, Chimanbhai Charel, examined at Exh.16, has expressed a firm opinion that death of the deceased was because of Asphyxia resulting from strangulation and, therefore, cause of death of the deceased, as mentioned in the post-mortem notes, should be accepted by the court. It was argued that more than sufficient opportunity was given to the defence to cross-examine Dr. Charel to enable the defence to bring on record relevant facts relating to cause of death of the deceased and, therefore, Miscellaneous Criminal Application, which is filed to fill up lacuna in the case of defence, should not be accepted by the court. The learned counsel for the State Government asserted that the passages which are sought to be relied upon from the book of MODI'S MEDICAL JURISPRUDENCE AND TOXICOLOGY were neither shown nor put to Dr. Charel during his cross-examination and therefore, the same should not be taken into consideration by this court for the purpose of discrediting him and the case of the appellant should be decided on the basis of evidence available on the record of the case. In the alternative, it was argued that the opinions expressed by Dr. Modi in his book are not relevant to the proved facts of the case and on the basis of hypothesis suggested by Dr. Modi in his book, no benefit of doubt should be given to the appellant. It was argued that, in fact, the three doctors who had performed autopsy on the dead body of the deceased did not find particles of carbon monoxide in the trachea of the deceased at all after dissection of the body and if particles had been found, it would have been so mentioned in the findings recorded in the post-mortem notes and, therefore, it is wrong to contend that as there is no reference to carbon monoxide in the trachea of the deceased while preparing post-mortem notes, the same should be treated as incomplete or not inspiring confidence of the court. It was argued that inquest was prepared by non-medical persons whereas presence of contusion or lacerated wounds was required to be ascertained by the doctors who performed autopsy on the dead body of the deceased and therefore it is wrong to contend that the findings recorded in the post-mortem notes and inquest report do not tally with each other or are in conflict with each other. The learned counsel for the State pleaded that after performing detailed autopsy on the dead body of the deceased, the doctor has given opinion that the deceased died because of Asphyxia resulting from strangulation and, therefore, this court would not be justified in substituting the same by holding that burns found on the dead body of the deceased were ante-mortem, on the basis of hypothesis suggested by Dr. Modi in his book. It was asserted that Dr. Charel has not mentioned in his testimony before the court that as the heat applied to the dead body of the deceased was very great, cracks and fissures resembling incised or lacerated wounds were found but the doctor has given a firm and specific opinion that incised wounds and lacerated wounds found on the dead body of the deceased were ante-mortem as a result of which, the hypothesis suggested by Dr. Modi on which the learned counsel of the appellant has relied upon, is of little assistance to the appellant. It was maintained by the learned APP for the State that the post-mortem report of the deceased is complete in all respects and, therefore, should not be disregarded by the court on the grounds suggested by the learned counsel of the appellant. It was argued that the testimony of witness Prembai read with that of witness Mohanlal, witness Taradevi and witness Lalchand establishes the case of the prosecution against the appellant beyond pale of doubt and, therefore, the impugned judgment should be upheld. It was pointed out to the court that the Trial Court has recorded cogent and convincing reasons for convicting the appellant under Sections 302 and 201 I.P.C. and as the learned counsel of the appellant has failed to dislodge them, instant appeal should be dismissed. 9. This court has heard Mr. B.M. Mangukiya, learned advocate of the appellant as well as Mr. K.C. Shah, learned APP for the State at length and in great detail. This court has also