/', Tl^' >••' ^ i r^ ^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil KumarSinha. J. Criminal Appeal No. 1096 of 1993 VijayKumar & Another Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEVGUPTA '-? c^^\~f^^ ^J ^ <^-^^' ;1S!- Sd/- Chief Justice -^^/4;/2011 Post for Judgment— / r nn-l l Sd/- Judgg^ / y/2011 RAJESH KUMAR SONTEKE Digitally signed by RAJESH KUMAR SONTEKE Date: 2025.02.07 12:29:07 +0530 a^, i[., ^ "^ ^ ^ ^ -^ .';'. -rf' A ?- L N. HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Rajeev Gupta, C.J. & Hon'ble Shri SunilKumar Sinha,_J. APPELLANTS RESPONDENT Criminal Appeal No. 1096 of 1 993 1 Vijay Kumar son of Hulasram Koushik, aged 24 years 2 Hulasram son of Ramcharan Koushik, aged 45 years Both Agriculturists, Resident of Village: Kanpa, Police Station: Kawardha Tehsil: Kawardha, District Rajnandgaon, M.P. (Now District Kawardha, C.G.) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) (Criminal Appeal under Section 374 12} of The Code of Criminal Procedure, 1973) Appearance: Mr. P.K.C. Tiwari, Sr. Advocate with Mr. Shashibhushan, Advocate for the appellants. Mr. Jameel Akhtar Lohani, Panel Lawyer for the State. JUDGMENT (5-.05.2011) Following judgment of the Court was delivered by Sunjl KumarSinhaLJ^ (1) This appeal is directed against the judgment dated 23 of November, 1993 passed in Sessions Trial No. 32/93 by the Additional Sessions Judge, Khairagarh, Link Court Kawardha. By the impugned judgment, appellant No.1 has been convicted u/ss <.- Criminal Appeal No. 1096 of 1993 302 & 201 IPC and appellant No.2 has been convicted u/s 201 IPC. Appellant No.1 has been sentenced to undergo imprisonment for life & R.l. for 3 years and appellant No.2 has been sentenced to undergo R.l. for 3 years. (2) The facts, briefly stated, are as under:- Deceased- Vidhya Bai was daughter of Jageshwar Singh (PW-3). She was married to appellant No.1 in the year 1984. Gouna was performed in the year 1987. After gouna she was residing with the accused persons in village- Kanpa. Appellant No.2 is the father-in-law of the deceased. The 3rd accused namely- Uma Bai was the mother-in-law of the deceased. On 17.12.92 at about 7.00 a.m. it was informed to the parents that Vidhya Bai has died. After receiving this information, brothers of the deceased namely- Rajesh, Ramesh Kumar (PW-7), her sister-in-law (bhabhf) and mother- Inder Bai (PW-8) along with the villagers went to village Kanpa. They saw the dead body and thereafter the body was cremated. On 2.1.93, Jageshwar Singh (PW-3) lodged a written (typed) report (Ex.-P/10) to the concerned police making allegations regarding ill-treatment of his daughter on account of demand of dowry and further that it was a case of murder for which the 3 accused persons were responsible. A merg intimation (Ex.-P/14) was registered. The dead body was exhumed on 4.1.93 and post-mortem examination was conducted. The Autopsy Surgeons found that there was a fracture on first cervical vertebra, hyoid bone was also fractured and there was also a fracture on thyroid cartilage. They opined that the cause of death was asphyxia and shock due to throttling and fracture on first cervical vertebra. The post-mortem report is Ex.-P/4, Criminal Appeal No. 1096 of 1993 ^A After completion of usual investigation, the charge-sheet was filed against the 3 inmates of the house i.e. husband, father-in-law & mother-in-law. The charges were framed u/s 302 in alternative 302/34 IPC and further in alternative u/ss 304B&201 IPC. The learned Sessions Judge held that it was a case of murder as also causing disappearance of evidence of murder and the 2 accused persons (appellants herein) were liable for punishment under the aforementioned Sections of IPC. However, the 3 accused namely- Uma Bai (mother-in-law) was acquitted. (3) Mr. P.K.C. Tiwari, learned Sr. Advocate appearing on behalf of the appellants, would submit that it was a case of natural death. He would further submit that many family members of the deceased, including brothers, sister-in-law and mother had visited the house of the appellants and they participated in cremation, but they did not raise any objection at that time. Even no objection was raised till filing of the written report on 2.1.93. This report was lodged after inordinate delay. The Sessions Judge has placed reliance on the opinion of the Doctors that it was a homicidal death which was based on 3 fractures found over the body. He would also submit that, in fact, those fractures were on account of handling of the dead body and its cremation by putting heavy stones and soil and there was also a possibility of receiving fractures at the time of exhumation of the body. Therefore, the opinion of the Autopsy Surgeons was not founded on positive symptoms and unassailable '.(<sai> 4 Criminal Appeal No. 1096 of 1993 evidence of throttling and murder. The Sessions Judge thus erred in law in holding that the deceased died homicidal death. (4) On the other hand, Mr. Jameel Akhtar Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment andfindings recorded by the Sessions Court. (5) We have heard learned counsel for the parties at length and have also perused the records ofthe sessions case. (6) Admittedly the alleged incident took place on 17.12.92 and the parents of the deceased were immediately informed by the in-laws of the deceased. On their information, Ramesh Kumar (PW-7), his elder brother Rajesh (both brothers of the deceased), their mother- Inder Bai (PW-8), sister-in-law of the deceased- Kumari Bai and 2 villagers namely- Shiv Charan and Khakhra Bai went to village Kanpa. Ramesh Kumar (PW-7) deposed that he saw the dead body which was kept in the courtyard of the house. He had seen swelling and black spot on the neck of the deceased and blood was oozing out from the ears. He also deposed about the ill-treatment of the deceased by the appellants. He further deposed that he wanted to make a report to the police, but he was convinced by the appellants for not lodging the report, therefore, the report was not lodged. hle very categorically admitted that in the evening he had narrated the entire story to his father Jageshwar Singh (PW-3). He was not 4. ..-<-a&--^... ^ ^ M &>-..<.C tiss S I '!^pi's'"''g! JJ \~'-^// "»!».„ a1tss.csy Criminal Aooeal No. 1096 of 1993 feeling well, therefore, the report was not lodged by him also. Inder Bai (PW-8 - mother of the deceased) also deposed in similar fashion. She also deposed that she noticed that blood was coming out from the ears; there was swelling on the neck; there was an impression over the neck; and stomach was swollen. (7) It is self evident from the contents of written report (Ex.-P/10) that it was lodged on 2.1.93. That means the said report was lodged on 17* day after the date of incident. Jageshwar Singh (PW-3) has not assigned any reason in the report for lodging the report after such a long delay. This report has been lodged after due discussion with Ramesh Kumar (PW-7) and Inder Bai (PW-8). There is omission in the report regarding the symptoms on the dead body which the above 2 witnesses deposed before the Court. If all the above symptoms were told by Ramesh Kumar (PW-7) and Inder Bai (PW-8) to Jageshwar Singh (PW-3) who lodged the report, the facts relating to those symptoms would have been mentioned in the report showing reasons to believe that it was a case of homicidal death and the deceased did not die a natural death. (8) In Ramii Suriva and another -Vs- State of Maharashtra, AIR 1983 SC 810, there was extra-ordinary delay in lodging the F.1. R. and there was also failure of the prosecution to explain the delay. The reason given by the prosecution for inordinate delay in reporting the incident to the police outpost was hardly convincing. ,^i^ Cruninal Appeal No. 1096 of 1993 The Supreme Court held that in such circumstances, the F.1. R. should be viewed with suspicion. (9) In Dilawar Sinah -Vs- State of Delhi. AIR 2007 SC 3234. it was held that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case. (10) In Mahtab Sinah & Anr. -Vs- State of U.P.. AIR 2009 SC 2298, the incident took place few yards away from Police Station but eye-witness, informant did not report the matter to Police Station immediately. They got a written report prepared from one person and then went to Police Station with written report. The Supreme Court held the delay in reporting incident at police station creates doubt about truthfulness of prosecution case. (11) As we have already stated that no explanation has been offered in the report for inordinate delay of 17 days. The prosecution ^ Criminal Appeal No. 1096 of 1993 witnesses have tried to explain the delay by saying that Jageshwar Singh (PW-3) was not well. This appears to be a casual attempt to explain the delay. There were two majors sons of Jageshwar Singh (PW-3). If Jageshwar Singh (PW-3) was ill, he should have sent his sons to lodge the report. It was not a small incident. According to them, the deceased was killed by in-laws etc. in her matrimonial house and was buried by them. In normal circumstances, in such matters, a report should have been lodged immediately. The conduct ofthe above witnesses, including Jageshwar Singh (PW-3), was not at all convincing and satisfactory. The casual explanation of delay offered by then in their evi?lence was not acceptable. Therefore, we are of the view that unexplained inordinate delay in lodging the F.1.R., in light of the above judgments of the Supreme Court, was fatal to the prosecution. (12) Now we shall considered the finding relating to homicidal death ofthe deceased. (13) The above finding is mainly based on evidence of Dr. R.D. Nagariya (PW-1). He had noticed above 3 fractures on the dead body of the deceased. He did not notice any external injury. The dead body was in highly decomposed condition. Except the above 3 fractures no abnormality was noticed by him. He opined that the cause of death was asphyxia and shock due to throttling and fracture of first cervical vertebra. He categorically admitted in the Criminal Aupeal No. 1096 of 1993 cross-examination that the basis of his opinion was the fractures sustained on the hyoid bone and thyroid cartilage. The body was exhumed in presence of the Magistrate and the Autopsy Surgeon Dr. R.D. Nagariya (PW-1). It comes in the evidence that the body was in a grave (kabra) having width of 3 ft. and depth of 3-4 ft. It was covered by the soil. Ramesh Kumar (PW-7) also admitted in Para-5 of his cross-examination that the body was cremated in grave having depth of 4-5 ft. The length of grave was 6 ft. and its width was 3 ft. After burying the body in grave, soil was pitted, water was poured and thereafter it was packed by stones so that it could not be disturbed or taken out. (14) Modi's Medical Jurisprudence and Toxicology, Twenty-third Edition, Chapter 15 deals with Post-mortem Artefacts. At page-468 handling of a dead body and exhumation artefacts have been dealt with in the following manner:- (ii) Handling of a Dead Body Due to rough handling of a body by mortuary attendants or during transportation, the following artefacts may be caused: (1) Contusion over occiput due to bumping of the head. (2) Very rarely, the cervical spine may be fractured when neck is in a flaccid state. (3) Abrasions over back or bony prominence due to dragging ofthe body. (4) Fractures of long bones, particularly in elderly debilitated persons and particularly those who have been confined to the bed for a long time, due to osteoporetic changes and fragility of bones. Criminal Aooeal No. 1096 of 1993 (5) Rigor mortis may be broken while lifting and handling the bodies, giving wrong clues about the time since death. However, it must be borne in mind, particularly while examining the bodies on the scene of crime, that it may be necessary to break the rigor mortis artificially, to find out the concealed injuries particularly in the private parts. (iii) Exhumation Artefacts Digging tools may cause accidental fractures during the recovery of body. The presence of fungus on injuries and natural orifices may cause confusion. The discoloration of the skin beneath the fungus growth simulates contusion. Post-mortem inbibition of toxicological elements in earth may pose problems for toxicological analysis. It is therefore mandatory to collect the earthen material from: (a) around the body separately for analyses; and (b) a sample of earth- a distance away from the burial site. (15) On the above observations of the author, and also on common knowledge, a possibility of such post-mortem fractures coming on the dead body at the time of cremation or exhumation cannot be fully ruled out. If we look into the opinion of Doctor as also post-mortem report Ex.-P/4, the only basis of giving opinion regarding homicidal death was the 3 fractures received on the body of the deceased. The Autopsy Surgeon has categorically admitted that except the above, there were no reasons to opine that the death of the deceased was homicidal. The Doctor is a witness of both fact and opinion. The Court has to remember that medical evidence is mainly opinion evidence on which the Court could form its own independent conclusion. The evidence of the Doctor is to be ^-/l. Criminal Appeal No. 1096 of 1993 appreciated as any other evidence in light of the material available on record and then a finding has to be recorded by the Court (Please see - 2007 CRI.L.J. 1036 - Atami Laxman -Vs- State of Chhattisfjarh). If a possibility of such fractures as received on the body of the deceased, cannot be fully ruled out, Doctor's opinion which was totally based on the above fractures cannot form the basis to record a finding that the cause of death was throttling and it was homicidal in nature. The learned Sessions Judge did not examine the matter in light of the possibilities of cremation or exhumation artefacts and instances of receiving such fractures on the dead body during handling of the dead body. We are of the view that in the above facts and circumstances, the finding of homicidal death based on medical opinion and post-mortem report cannot be sustained, as a possibility of receiving post-mortem fractures during handling of dead body, cremation and exhumation cannot be fully ruled out in this matter. (16) Apart from the above, we also note that according to Hariram (PW-5), the accused persons were taking the deceased to the hospital. They had taken her on a cot by making a doli. They had gone to the distance of 2 Kms where it was found that the deceased had died. Thereafter the dead body was brought back to the house. Though he was not declared hostile by the prosecution, but he was confronted with his case diary statement by Public Prosecutor only on the point that the body was covered by a chadar, therefore, he Criminal Appeal No. 1096 of 1993 could not see the face etc. There is no cross-examination on the poirit that the deceased was taken to the hospital by the appellants and this witness was also accompanying them. Why a dead person would be taken to the hospital. We have examined the entire evidence. It does not appear to be a case in which the appellants were acting in a planned manner to project that it was a natural death by taking the dead body to a distance of 2 Kms on a cot towards the hospital. (17) For the foregoing reasons, we allow this appeal and set-aside the conviction and sentences awarded to the appellants u/ss 302 & 201 IPC. The appellants are acquitted of the charges framed against them. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti