IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 4123/2010 Reserved on: 9.9.2010 Decided on:7.10.2010. Anita Ahluwalia ...Petitioner. Versus State of Himachal Pradesh and others. ... Respondents. Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice. The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Petitioner : Mr. G.K. Kaushik, Advocate with Mr. S.L. Kumar and Mr. Navlesh Verma, Advocates. For the Respondents: Mr. Ankush Dass Sood, Addl. A.G with Mr. J.K. Verma, Dy. A.G. for respondents No. 1 to 3. Mr. Ashok Kumar Thakur vice Mr. Sandeep Sharma, Asstt. Solicitor General of India for respondent No.4 Mr. Naresh Kumar Gupta, Advocate for respondent No.5. Per Justice Rajiv Sharma Petitioner’s daughter was married to respondent No.5 on 5.9.2007 at Delhi. She died on 20.6.2009. Police Station, Baddi Whether the reporters of the local papers may be allowed to see the Judgment? 2 was informed by some unknown person on 20.6.2009 at about 4.30 P.M. about the death. Report was entered at Sr. No. 34 in daily diary. The body of the deceased was taken to E.S.I. Hospital, Nalagarh for post-mortem. The post-mortem was conducted on 21.6.2009. It was opined that the deceased died due to asphyxia due to ante-mortem hanging. The viscera was preserved by the Medical Officer for expert opinion of the Chemical Examiner. Petitioner filed a complaint to the Local Police, on the basis of which FIR No. 104/2009 under section 306 of the Indian Penal Code was registered at Police Station, Baddi. Petitioner approached this Court by way of CWP No. 2408/2009 seeking investigation from independent agency like Central Bureau of Investigation or State C.I.A. and constitution of fresh Medical Board. The investigation was transferred to C.I.A. on 30.7.2009. Respondents were also directed to constitute a Medical Board to examine the post-mortem report in order to ascertain exact cause of death. The Medical Board was directed to supply the report to the newly appointed Investigating Officer. Report dated 7.9.2009 was furnished by the Medical Board to this Court. Petitioner also moved CMP No. 7272 of 2009 seeking transfer of investigation to the Central Bureau of Investigation. The Court after going through the contents of the report filed by the Medical Board of the Indira Gandhi Medical College, Shimla, rejected the same on 3 5.11.2009. The doctors could not explain the multiple injuries on the face of the girl as per the photographs placed on record. The report was also contrary to Modi’s Medical Jurisprudence and Toxicology (Twenty-second edition]. Thereafter the Court Directed All India Institute of Medical Sciences, Delhi to constitute a Medical Board of doctors not below the rank of Professor to re-examine the history of case and give opinion in a sealed cover vide order dated 5.11.2009. Order dated 5.11.2009 reads thus: “In sequel to previous order, the Doctors are present in Court. We have gone through the contents of the report minutely alongwith other material brought on record by the parties. We have interactive sessions with the Doctors. The Doctors could not explain multiple injuries on the face of the girl as per the photographs placed on the record. There are predominately visible signs of injuries on the face of the girl in the photographs. The main sign if the cause of death is due to hanging is that neck is found stretched and elongated. The eyes are closed or partly open, and the pupils are usually dilated. In the present case, neither the neck is found stretched nor elongated. It is clear from the photographs placed on the record that the eyes are wide open. This vital aspect is overlooked by the Doctors in the present case. The other sign is that salvia is found dribbling out of an angle of the mouth down on the chin and chest. The saliva in the present case is not coming out of the mouth. It is a sure sign of hanging having taken place after death, as the secretion of saliva being a vital function cannot occur after death. [Modi’s Medical Jurisprudence and Toxicology (Twenty-second edition]. This sign has also been overlooked by the Doctors. 4 The Doctors have mentioned in their report that the photographs do not show close up of the face. This finding is perverse. The photographs placed on the record which were also made available by the prosecution to the team of Doctors are clear. The Doctors could not explain presence of clear marks of injuries on the face of the victim. We will restrain ourselves from discussing this aspect further at this stage since it may prejudice the case of the parties either way. In view of the observations made hereinabove, we are not satisfied with the report submitted by the team of Doctors. The same is rejected. The learned Advocate General has also submitted that the State Government has no objection if the matter is referred to All India Institute of Medical Sciences, Delhi to have second opinion. Consequently, the Director, All India Institute of Medical Sciences, Delhi through Shri Sandeep Sharma, learned Assistant Solicitor General of India is directed to constitute the Medical Board of Doctors not below the rank of Professor(s) to re-examine the medical history of this case and to give opinion in a sealed cover. The Medical Board shall be constituted by the Director, All India Institute of Medical Sciences, Delhi within three days from the receipt of copy of order through the office of learned Assistant Solicitor General of India. The report of the Medical Board must be self speaking based on the evidence brought on record till date, including post-mortem report, State Forensic Science Laboratory report, pictures and other connecting evidence/material. It shall be open for the Doctors of Medical Board to visit the spot, if necessary. The State is directed to make available the entire medical record to the Director, All India Institute of Medical Sciences, Delhi in a sealed cover through an Officer not below the rank of Additional Superintendent of Police alongwith certified copy of this order. The report of the Medical Board shall be placed on record in a sealed cover within three weeks from today. Dasti copy.” 5 2. All India Institute of Medical Sciences, Delhi furnished report on 2.1.2010. The Medical Board has taken into consideration the opinion given by the Medical Board constituted by the Indira Gandhi Medical College, Shimla. The Medical Board of All Indian Instituted of Medical Sciences, Delhi was required to give independent opinion wholly uninfluenced by the report of the Medical Board constituted by the Indira Gandhi Medical College, Shimla. This report was also rejected by this Court on 6.1.2010. The Court was constrained to direct the Senior Medical Superintendent of Lady Harding Medical College (Sucheta Kriplani Hospital), New Delhi to constitute a fresh Medical Board comprising of senior most members of the faculty of Forensic Medicine and Toxicology. Order dated 6.1.2010 reads thus: “In sequel to orders dated 5.12.2009, 8.12.2009 and 24.12.2009, the Department of Forensic Medicine and Toxicology, All India Institute of Medical Sciences has submitted report to the Court in a sealed cover. The same was opened in the presence of parties. It is dated 2.1.2010. The Medical Board while giving the opinion has also taken into consideration the opinion given by the Medical Board constituted by Indira Gandhi Medical College (IGMC). The purpose of constituting the new Medical Board of the All India Institute of Medical Sciences was to have independent opinion wholly uninfluenced by the earlier report of the Medical Board constituted by Indira Gandhi Medical College (IGMC). The purpose of constituting of Medical Board was also to get independent opinion. Since 6 the opinion given by the All India Institute of Medical Science is influenced by the earlier report furnished by the Medical Board constituted by Indira Gandhi Medical College (IGMC), the same is liable to be rejected. Accordingly, we reject the report dated 2.1.2010. However, to do complete justice and to know the exact cause of death, we direct the Senior Medical Superintendent of Lady Harding Medical College (Sucheta Kriplani Hospital), New Delhi to constitute a fresh Medical Board comprising of Senior most members of the faculty in the Forensic Medicine and Toxicology. The Medical Board to be constituted by the Senior Medical Superintendent Lady Harding Medical College (Sucheta Kriplani Hospital), New Delhi shall give its independent opinion. The Superintendent of Police, Baddi is directed to supply the entire record to the Senior Medical Superintendent Lady Harding Medical College (Sucheta Kripalani Hospital) within a period of seven days except two reports, indicated hereinabove. The report shall be submitted by the Senior Medical Superintendent Lady Harding Medical College (Sucheta Kriplani Hospital) within a period of four weeks from today in a sealed cover.” 3. In sequel to the order passed by this Court on 6.1.2010, the Department of Forensic Medicine and Toxicology furnished report to this Court on 5.2.2001 (Annexure P-10). 4. Mr. G.K. Kaushik and Mr. Navlesh Verma have strenuously argued that no effective investigation has been carried out by the police. It was contended that the police has not complied with section 174 of the Code of Criminal Procedure, 1973. They have also contended that no satisfactory reply has been filed by the respondents on the manner in which the viscera was destroyed. It was further 7 contended that the phone call details of respondent No.5 and his family members have not been obtained. According to them, the Police has tried to shield respondent No.5 and in these circumstances they have prayed for handing over the case for investigation to the Central Bureau of Investigation. 5. Mr. Ankush Dass Sood, learned Additional Advocate General appearing for respondents No.1 to 3 and Mr. Naresh Kumar Gupta appearing on behalf of respondent No.5 have strenuously argued that the investigation has been carried out in accordance with law and the challan has already been put up. They have also contended that it is only in the rarest of the rare cases that the matter is required to be handed over to the Central Bureau of Investigation. 6. We have heard the learned counsel for the parties and have perused the pleadings carefully. 7. Age of the daughter of the petitioner at the time of her death was 21 years. It has come in the inquest report that there were injuries on left cheek of the deceased. She has died during the period of seven years of her marriage. In these circumstances, the Police was required to comply with section 174 of the Code of Criminal Procedure, 1973. It is a serious omission on the part of the investigating agency. 8. A Division Bench of Bombay High Court in Dayaram Chandramohan Kanswal versus Inspector of 8 Police Kapurbawdi Police Station, Thane and another, 1997 Crl.L.J. 2713 has held that when a woman dies within seven years, information about suspicious death ought to have been passed over to the nearest Executive Magistrate by police. The Divisional Bench has held as under: “4. What was worse and shocking is that the inquest panchanama of the body of the deceased Mangaleshwari was conducted in grave violation of the mandatory provisions of Section 174 of the Code of Criminal Procedure, 1973. Section 174 of the Code of Criminal Procedure dealing with the duties of the police to enquire and report on suicide and other suspicious deaths casts some obligations upon the police officer to immediately give information to the nearest Executive Magistrate empowered to hold inquest. Sub-section (3) of Section 174 of the Code of Criminal Procedure specifically deals with a death of a woman within 7 years of her marriage, which may be either suicidal or homicidal. Section 176 of the Code makes it obligatory on the nearest Executive Magistrate empowered to hold inquests to hold enquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer. This is mandatory where the case is of the nature referred to in clause (I) or clause (ii) of sub0section (3) of Section 174. In so far as they are relevant for our purpose the said provisions reads as under: 174. Police to enquire and report on suicide etc. (1) and (2)....... (3) When-- (I) the case involves suicide by a woman within seven years of her marriage; or (II) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that 9 some other person committed an offence in relation to such woman; or (III) to (v)........... (4)..........................” Section 176 of the Code of Criminal Procedure reads as under: 176. Inquiry by Magistrate into cause of death:- (1) When any person dies while in the custody of the police or when the case is of the nature referred to in clause (I) or clause (ii) of sub-section (3) of Section 174, the nearest Magistrate empowered to hold inquests shall and in any other case mentioned in sub-section (1) of Section 174 any Magistrate so empowered, may hold an inquiry into the cause of death of either instead of, or in addition to, the investigation held by the police officer; and if he does so, he shall have all the powers in concluding it which he would have in holding an inquiry into an offence. (2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case; (3) Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined. (4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry. Explanation : In this section, the expression “relative” means parents, children, brothers, sisters and spouse.” “ 13. In our view, the petitioner has every justification to feel aggrieved about the manner in which the police have carried out the investigation. It is discrepant in 10 more than one ways and we may only illustrate a few aspects. I) Despite the mandatory provisions of sections 174 and 176 of the Code of Criminal Procedure, no information was given to the nearest Executive Magistrate, though admittedly it was a case of a death of a woman within seven years of marriage and no less than the petitioner, father of the deceased, had alleged harassment and case of dowry death. ii) The P.S.I. and even the concerned Secretary Home Department have categorically admitted that there is no practice in Bombay or Thane to comply with the mandatory provisions of sections 174 and 176 of the Code of Criminal Procedure and the Secretary to Government, Home Department has only stated that the matter “needs to be investigated and the reasons for not following the provisions have to be ascertained.” iii) The repeated statements of the petitioner recorded on 6th and 11th July, 1996 clearly pointed out an accusing finger towards Bhagwati Prasad the son-on-law and his sister Sulochanadevi and made out a case of dowry death. However, the police were content with initially registering a case of accidental death vide ADR No. 58 of 1996 on 6th July 1996 and it was as late as on 23rd July 1996 after the Asstt. Commissioner of Police passed an order on 22nd July 1996 that the offence under sections 302, 201 read with Section 34 of IPC were registered. iv) Despite the categoric averment made by the petitioner repeatedly and elaborately in the statement of 11th July, 1996 and 23rd July 1996 (Ex.A page 13), no offences under section 498A read with Section 306 of IPC have been registered for reasons best know to the Asstt. Commissioner of Police. Though we do not want to make any observations on merits of either the investigation or a possible trial, it is not unusual in such a case that the person who is acquitted of the offence punishable under section 302 may be found guilty of offences punishable under section 498A read with 11 section 306 of IPC. These are matters which have to be left to be decided at the trial provided there is a proper investigation into the offences which have been repeatedly alleged. v) The affidavits filed before us leave no doubt in our mind that the investigation is not only not satisfactory but is clearly faulty. The petitioner is justified in making the allegation that the police officers wanted to oblige the accused whosoever the accused may be. We are not indicating anything on the merits of the investigation which we are inclined to order to be held by an independent agency namely by D.C.P. Crime Branch, Thane.” 9. When the information was sought by the husband of the petitioner the manner in which the viscera has been destroyed, it has come that it was thrown out since it was smelling. In the reply, it is averred that the viscera was buried. Preservation of viscera was utmost necessary in view of the peculiar facts and circumstances of the case, particularly when, the D.N.A. test was also required to be conducted. The Investigating Officer has filed alongwith the challan, the details of the telephone calls of the period with effect from 1.7.2008 to 30.5.2009. However, there is omission as far as calls made by respondent No.5 or his family members is concerned with effect from 1.6.2009 to 20.6.2009. The police had prepared the inventory of the articles lying in the room. However, supurdari was handed over to the father of respondent No.5. Father of respondent No.5 has been permitted to remove the 12 ceiling fan. The police was required to seal the compartment and no access could have been given by the police to the persons, who were not involved in the investigation. The report furnished by the Department of Forensic Medicine and Toxicology (Annexure P-10) is exhaustive and has dealt with almost every important aspect of investigation. The Medical Board has observed the following lacunae in the inquest papers: a) Scene of death was not properly described, like presence or absence of any platform to tie the ligature around the ceiling fan, presence or absence of disturbance of surrounding furniture in the house. b) The inquest papers are silent about who brought down the body of the deceased from hanging position, what was the method used to remove the ligature from the neck of the deceased etc. The investigating police officer has not submitted the ligature material for necessary examination by the medical officer who conducted the postmortem examination. c) The investigating police officer has not identified the person who had given information about such death. d) The investigating police officer has not investigated the motive or reason before reaching conclusion about suicidal death. e) As the age of the victim was only 21 years, then the marriage could have been occurred within 7 years. Under that circumstance, why the investigation was not carried out by a magistrate? Why the postmortem examination was not conducted by a team of doctors by placing such request in the requisition? 13 f) The investigating police officer has not requested for preserving nail clippings of the deceased to rule out presence of any foreign tissue/fibres. g) The investigating police officer has not requested for preserving scalp hair sample of the deceased to match with any scalp hairs entangled to the alleged ligature material. h) If the supplied photographs were taken by the investigating police officer, then why the photographs of ligature mark from other angles were not taken or submitted?” 10. The Medical Board observed the following lacunae in the post-mortem report and in the supplied photographs: a) Ligature mark is not properly described. It is lacking in the exact course of ligature mark, base of the ligature mark, margins of the ligature mark etc. b) Post-mortem Report was silent about the injuries on the left cheek and left mandible initially. c) In the opinion, initially, there was no answer to the queries asked by the investigating police officer in requisition and inquest papers. d) The Medical Officer had not described any signs and symptoms of asphyxia to link it with cause of death. e) The Medical Officer had not mentioned that the deceased was wearing underwear also. f) The Medical Officer had not mentioned the time of receipt of inquest papers and the dead body and the time of conduction of post-mortem examination. 11. Lacunae observed in the supplied photographs: a) Photographs are not showing the complete picture of scene of death. b) Photographs are not showing the entire course of ligature mark. 14 c) Photograph of the front view of the alleged deceased is too hazy and indistinct, hence the ligature mark on the front of neck could not be made out. d) No scale had been placed near by the injuries to estimate approximate dimension of the injuries. 12. The Medical Board has given the following opinion: “Considering the above mentioned lacunae observed in the inquest papers, post-mortem report and supplied photographs, it is not possible for us to give the exact opinion regarding the cause of death from the supplied materials. However, death having occurred as a result of asphyxia due to hanging could not be ruled out, considering the following findings: 1) Ligature mark appears to be situated high on the neck of the deceased. 2) Ligature mark appears to be discontinuous on the left lateral aspect of the neck of the deceased. 3) The victim was a health adult of average body built. The available records show no head injury, disease or deformity, or intoxication. 4) As per the postmortem examination report the internal structures of the neck were normal. 5) Face of the deceased was congested. 6) No other cause of death has been mentioned in the records. We disagree with the opinion given by the medical officer regarding the injuries found on the left cheek and mid-part of left mandible. The injury on the left mandible could have been caused by knot impression of the noose of the ligature. The injury on the left cheek could have been caused by a blunt object having some pattern. Board and faintly visible ligature mark on the neck of the deceased is suggestive of use of a soft and broad ligature material, like the alleged ligature material made of bed sheet and dupatta. 15 The ligature mark seen on the left side neck of the deceased is not possible by the supplied cable wire. 13. The Board has made the following recommendations: 1) “All the photographs showing complete course of ligature mark may be provided to draw a definite conclusion. 2) Blood stain on the ligature material to be subjected for DNA profiling to link the blood stain to the victim or any other person. 3) Forensic Science Laboratory may be asked to examine for salivary stain of the victim on the clothes of upper part of the body (T-shirt/Top) as well as on the dupatta part of the supplied ligature material. All the members of the medical board are in agreement with the above mentioned opinion and recommendations.” 14. It is evident from the report Ex.P-10 that the scene of death was not properly described by the Investigating Officer. The inquest papers were silent about who brought down the body of the deceased from hanging position and what was the method used to remove the ligature from the neck of the deceased. The Investigating Officer has not submitted the ligature material for necessary examination by the Medical Officer, who conducted the post-mortem examination. The Investigating Officer till date has not identified the person who had given information about the death. He has not investigated the motive or reason before 16 reaching conclusion about suicidal death