Case: Sahebrao Mohan Berad Vs. State of Maharashtra

death, the appeal was referred for decision to third Honble Judge. Accordingly, the appeal was placed for consideration before P.B. Gaikwad, J. He agreed with the conclusion of the Marlapalle, J. and came to the conclusion that the circumstances proved beyond all reasonable doubt lead to one and on the only conclusion towards the guilt of the appellant and further the deceased died a homicidal death. For coming to the aforesaid conclusion Gaikwad, J. held that a false report was given by PW.1, Kashinath, the uncle of the appellant at the instance of the father of the appellant alleging accidental death of the deceased. Another circumstance relied on was that during the night between 25th of June, 1984 and 26th of June, 1984 the deceased Laxmibai was in the company of the appellant and residing with him. Recovery of rolling pin by which the deceased was strangulated at the instance of the appellant was another circumstance relied on to convict the appellant. Failure of the appellant, who is none other than her husband and living together even in the night of occurrence to explain the circumstances under which Laxmibai met with the homicidal death was also taken into consideration to establish the guilt of the appellant. As regards the cause of death Gaikwad, J. held that Laxmibai died due to strangulation and it was a homicidal death. In this connection he observed as follows: "The Doctor, after considering the findings as regards external and internal injuries given opinion as regards cause of death as "death due to strangulation". If the evidence of PW.7 is read together with the evidence of post mortem report and the symptom; noticed by her on external and internal examination, I find that the said evidence is satisfactory and convincing so far as opinion about cause of death is concerned." 6. Accordingly, the order of the trial court acquitting the appellant of both the charges was set aside and he was held guilty for offence punishable under Section 302 and 201 of the Indian Penal Code and sentenced to suffer imprisonment for life and rigorous imprisonment for three years respectively.7. That is how the appellant is before us in the present appeal.8. Main plank of the submission of Mr. Arun R. Pednekar, learned Counsel appearing on behalf of the appellant is that the deceased Laxmibai met with an accidental death due to drowning and, therefore, the conviction of the appellant under Section 302 and 201 of the Indian Penal Code is bad in law. He points out that PW.7, Dr.(Mrs.) Sunanda Pande, during the postmortem examination, has not found any external injury on the person of the deceased. Presence of frothy discharge in the larynx and trachea and whitish discharge from right nostril in the postmortem examination of the deceased clearly go to show that the deceased met with an accidental death due to drowning. 9. Ms. Asha Gopalan Nair, learned Counsel representing the respondent-State, however, submits that PW.7, Dr.(Mrs.) Sunanda who conducted the postmortem examination in unequivocal terms stated that the deceased died due to strangulation and there is no reason to disbelieve her evidence. She points out that the evidence of PW.7, Dr. Sunanda and the postmortem report and the fact found by her on external and internal examination of the dead body clearly go to suggest that the deceased met with a homicidal death. 10. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her assertion that she had experience of conducting the postmortem examination has not been questioned by the appellant. She had found heamotoma on the neck and in her opinion the death was possible by pressing the rolling pin on the neck. The rolling pin recovered at the instance of the appellant was shown to her and she gave opinion that the death can be caused by pressing the same on neck.11. This Doctor though had found frothy discharge in the larynx and trachea and whitish discharge from the right nostril, still on consideration of the finding as regards the external and internal injuries came to the definite opinion that the death was due to strangulation. She had specifically denied the suggestion that the deceased met with an accidental death due to drowning. In the face of the same we find it difficult to hold that the deceased met with an accidental death. True it is that few signs of drowning were found on the dead body in the post mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted the post-mortem is the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence. Reference in this connection can be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69 in which it has been held as follows : "3.......... It is needles to say that the doctor who has examined the deceased and conducted the post- mortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor." 12. We have not found the death of the deceased to be accidental. Further, the circumstances referred to above clearly go to point out towards the guilt of the appellant.13. We are of the opinion that the High Court is right in coming to the conclusion that the circumstances proved clearly points out towards the guilt of the appellant and further deceased met with a homicidal death.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. We have bestowed our consideration to the rival submission and we do not find any substance in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her assertion that she had experience of conducting the postmortem examination has not been questioned by the appellant. She had found heamotoma on the neck and in her opinion the death was possible by pressing the rolling pin on the neck. The rolling pin recovered at the instance of the appellant was shown to her and she gave opinion that the death can be caused by pressing the same on neck.11. This Doctor though had found frothy discharge in the larynx and trachea and whitish discharge from the right nostril, still on consideration of the finding as regards the external and internal injuries came to the definite opinion that the death was due to strangulation. She had specifically denied the suggestion that the deceased met with an accidental death due to drowning. In the face of the same we find it difficult to hold that the deceased met with an accidental death. True it is that few signs of drowning were found on the dead body in the post mortem examination and the doctor though cognizant of the same came to the definite conclusion that the deceased died of strangulation. In our opinion, the doctor who examined the deceased and conducted theis the only competent person to opine the nature of injuries and the cause of death. It is only in a case, where the opinion is inherently defective, the Court will discard its evidence. Reference in this connection can be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69  in which it has been held as followsIt is needles to say that the doctor who has examined the deceased and conducted the postmortem is the only competent witness to speak about the nature of injuries and the cause of death. Unless there is something inherently defective the court cannot substitute its opinion for that of the doctor.We have not found the death of the deceased to be accidental. Further, the circumstances referred to above clearly go to point out towards the guilt of the appellant.13. We are of the opinion that the High Court is right in coming to the conclusion that the circumstances proved clearly points out towards the guilt of the appellant and further deceased met with a homicidal death.