Case: Mohd. Zahid Vs. State of Tamil Nadu

The prosecution case stated briefly against the appellant is that he was married to one Jabeena on 29th January 1984 and after the marriage for some time they resided in an independent house. In the year 1985, Jabeena gave birth to a male child in her parents house and thereafter the appellant came to live in the house of hisinthe house bearing Door No. 22, 11th Avenue, Ashok Nagar, Madras. The said house contained one bed room in the ground floor which was occupied byelder daughter and her husband. Out of the four bed rooms on the first floor, one bed room was occupied byand his wife, the second bed room next to that was occupied by the appellant and Jabeena with their child, the third bed room was occupied by two unmarried sons ofand the fourth bed room was lying vacant.On 27.12.1985 at about 6.00 a.m. the wife of PW 1, by name Maliga Ahamed,heard the continuous cries of Jabeenas child, hence, she came to the room of the appellant and knocked on the door of the room. It is alleged that the appellant got up and opened the door and on being asked byhe gave the child to her and closed the door of his room. A short while after, it is stated that the appellant shouted forwho went to the room of the appellant, when the appellant pointed out tothe bathroom where Jabeena was found lying with the upper part of her body having become black on account of burning. The appellant is supposed to have told her that Jabeena suffered the burns while heating the water on the stove.The further case of the prosecution is that on hearing the cries of PW 3, PW 1 came to the said room and he also found Jabeena lying ant he floor and when he tried to find her pulse, he found her to be dead. Immediately, thereafter the family tried to call a Doctor by name Dr. Aziz Rehman over the phone but he was not available. It is further alleged by the prosecution that on the persuasion of the appellant, Jabeena was given a bath by her mother PW 3 and her eldest sister, Abeeda Altafduring which time the appellant was found cleaning the bed and changing the bed sheet.It is contended by the prosecution, thereafter, PW 1 along with his friend Syed Asim went to Kumaran Nagar, Police Station and gave a report which is marked as Ex. P.1. On the basis of the said report the Officerof the said Police Station who has been examined as PW 10 registered a Crime No. 981/85 under Section 174 of the Cr. P.C.then sent the necessary report to the concerned authorities. On coming to know of the incident, the Inspector of Police PW 11 took up the investigation and reached the scene of occurrence about 9.50 a.m. and prepared an observation Magazar and scene sketch as perand 19. PW 11 thereafter held the inquest of the dead body of Jabeenaand seized MOs 1 to 4 and 7 to 10.It is the case of the prosecution that on a request made by PW 1, the father of Jabeena, who believed that Jabeena had died due to an accident nowas conducted and hencereleased the body of Jabeen toOn that very day Jabeenas body was buried in the Ammeerunnissa Begum Muslim Burial ground.The prosecution further states that as per the religious custom, the third day rites of the deceased were conducted. After these rituals, it is alleged that the appellant left the house ofand went away to his parental house taking all his belongings with him.The prosecution further alleges that the behaviour of the appellant during the third day rites was very peculiar and was not consistent with that of a caring husband. It was also stated that the relatives who attended the last rites as well as the third day ceremony were not convinced that Jabeena had died due to an accident. Through the evidence of PWs.1 to 7 prosecution then alleges that the appellant had earlier demanded money for the purchase of a scooter which was not given byand that his relationship with Jabeena was not very cordial because of his perverted sexual habits and also that the appellant was angry the day before the death due to the fact that he was not told about the visit of the other family members to SpencerCompany for the purchase of a washing machine. In view of this background,and his family members doubted the cause of the death of Jabeena. Therefore, on 3.1.1986 nearly 7 days after the death of Jabeena,approached the Assistant Commissioner of Policearound 7 p.m. and gave another report which is marked as Ex.P.2. Based on the said report the Assistant Commissioner of Police (ACP)requisitioned the file pertaining to Cr. No. 989/85 and changed the cause of death as "suspicious death" and sent express reports in the form of Ex.to the Court and the authorities concerned.thereafter requisitioned as per Ex.the services of Madras City Additional District Magistrate for exhumation of the dead body of Jabeena and for holding a further inquest.also requisitioned the services of Medical Officers at the time of exhuming the body and also for conducting theexamination. On 4.1.86 the concerned Tehsildar was informed of the fact that thewould be conducted at the burial ground itself. Thereafter, in the presence of witnesses and Panchayatdars the body of Jabeena was exhumed between 4.15 and 5.45 P.M. and the inquest was conducted by the Tehsildarm itself was conducted by a Medico Legal Expert (PW.8) with the help of one Dr. Balkrishna Rao (not examined). PW 8 was then the Additional Professor of Forensic Medicine, Madras Medical College and the said Dr. Balakrishna Rao was an Assistant Professor in the same college. Thereport (Ex.P.12) along with the inquest report was dispatched byto the concerned authorities which ultimately reached the Commissioner of Police on 26.2.1986. Based on the postmortem and inquest reports, the Commissioner of Police altered the Section of the offence in the concerned record to Section 302 I.P.C. Based on the investigation conducted thereafter, the prosecution charged the appellant of having committed the murder of Jabeena.Before the Trial Court the prosecution examined 12 witnesses and produced 25 exhibits including Ext.P.12, thereport. Both the Trial Court as well as the High Court accepted the case of the prosecution and found the appellant guilty of the offence charged against him.The High Court while dismissing the appeal of the appellant and affirming the judgment of the trial Court has accepted as many as 14 circumstances pointed out by the prosecution against the accused which are as follows :"(1) Motive evidence plus the temperament/conduct of the appellant at various stages.(1a) Appellant and the deceased were seen last together inside the bed room, the bolt of which room from inside, was opened by the appellant to help PW 3 to take away his crying son plus facial expression of the appellant anguished and terrifying at that juncture;(2) Appellant having shouted for help calling hisa little later after she left, with herThe conduct of the appellant pushing the unbolted bath room door and pointing out the fallen down deceased inside the bath room with her hands on her back and burn injuries on hercheek, ears, beck and chest together with burned cloth sticking on to her right thigh and left knee;(3) The availability of M.O.5 stove and M.O. 6 stand with a brass vessel and bucket inside the bath room of the appellant, though these articles would normally be found in the kitchen;(4) The reply of the appellant, when PW.3 questioned him as to what had happened, that the deceased had lifted boiled water and poured in into the bucket, before filling more water into the vessel, to boil it over again, in which process, accidentally her saree caught fire;(5) P.W.1 having found the body of his daughter chill without possibility of feeling the pulse, together with injuries already noticed, and the position in which the body was lying. Chillness of the body was sufficient proof, that death must have occurred quite some time ago and not at or about the time when PW.3 went out, with the infant;(6) The Conduct of the appellant in having informed PW 4 when questioned, that the deceased had slipped and fell down resulting in her saree getting engulfed in flames. This version is contrary to what the appellant had told to hisThe conduct of the appellant in insisting that Jabeena should be given a bath, since she was not clean and it was a Friday and successfully persuading both the witnesses to accede to this unusual request; The conduct of the appellant in refusing to help PWs. 3 and 4 to clean up his wife, stating that the link between him and his wife had got snapped.(8) The activity of the appellant in cleaning the bed room by removing old sheets and replacing them with fresh sheets within thewhen the body of his wife was taken inside the bath room, in pursuance of his request. The subsequent conduct of the appellant in cleaning the bath room and coming out fresh after bath, soon after his wife was laid on the cleaned bed;(9) The information furnished by PWs 3 and 4 to PW.1 when the latter scolded them for having bathed the body when it was a police case, that they indulged in such activity on the cringing request of the appellant;(10) Seizure of M.Os. 1 to 10 from the bath room and the dead body;(11) The conduct of the appellant creating an impression that the death of his wife was accidental which was implicitly believed, leading to a request not to send the body forConduct of the appellant on the 3rd day ceremony, his happy movements and care free eating, smoking and singing habits noticed of the appellant duping PW 5 as though he was looking for the Quran inside the Godrej bureau, when the Quran was easily available at its usual place and needed no search. Appellant leaving the house of hiswith his clothes soon after the 3rd day;(13) The interest exhibited by the appellant in a film exhibited in the Television relating to an Army Officer getting himself equipped with information to murder his wayward wife by compressing her neck without the possibility of her raising her voice to attract attention. Appellant having keenly visited a picturehouse to see the same film, when it was screened. The connection between the manner of murder in the film and the death of deceased Jabeena; and(14) Medical evidence indicating homicide and excluding possible suicide;"

Reasoning:
The second cumulative cause of death as per the opinion ofis cerebral anoxia caused due to burns. It is true thatnoticed certain burn marks on the face and chest of Jabeena. It is seen from the text books and from the evidence ofthat anoxia of the brain is caused due to lack of supply of oxygen to the brain which could be due to burning as found in the body of Jabeena.in her statement before the court stated thus : "Cerebral anoxia means the stoppage of blood supply to the brain. In the event of cerebral anoxia in the post mortem examination except the pale appearance of the brain, there will not be any other change in the brain. As the brain had been liquefied in this case, it cannot be stated whether brain becomes pale or not. There was no other sign by which I could say that there was cerebral anoxia. Cerebral anoxia in my opinion or conclusion based on my observation and findings in the post mortem examination. It is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain". A cautious reading of this part ofevidence shows in one partadmits that the one and only method by which a medical examiner can conclude that cause of death was due to cerebral anoxia is by noticing pale appearance of the brain. She also specifically admits that there will not be any other change in the brain in the case of cerebral anoxia and since the brain had become liquefied, it cannot be stated if the brain had become pale or not. She is also specific in her statement that there was no other sign by which she could say that was cerebral anoxia. Stopping for a while at this stage and examiningevidence, one finds that at the time of the post mortem examination, Jabeenas brain had liquefied and there was no way by whichcould have noticed the paleness in the brain. However, in the latter part of her evidence, she deviates from her earlier opinion and states that it is not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquification of the brain. These two statements are diametrically opposed to each other and we find it rather difficult to accept this part of her evidence which is soIn our view, the opinion ofthat the cause of death as recorded by her is due to the cumulative effect of asphyxia and cerebral anoxia, is rather difficult to accept.We are aware of the fact that sufficient weightage should be given to the evidence of the doctor who has conducted the post mortem, as compared to the statements found in the text books, but giving weightage does not ipso facto mean that each and every statement made by a medical witness should be accepted on its face value even when it isThis is one such case where we find that there is a reasonable doubt in regard to the cause of death of Jabeena and we find it not safe to rely upon the evidence ofsolely, for the purpose of coming to the conclusion that Jabeenas death is proved by the prosecution to be homicidal.We have examined the evidence of PWs. 1 to 7 who speak of the factum of the relationship of the appellant with Jabeena and various possible motives the appellant could have had for causing the death of Jabeena. First of all, we should notice the fact that on the date of the death of Jabeena, none of these witnesses entertained any doubt as to the complicity of the appellant in the death of Jabeena. They proceeded on the basis that Jabeena died an accidental death and even persuaded the investigating authorities to release the body without a proper post mortem. Therefore the court will have to be very cautious while appreciating their evidence. Assuming that the evidence of PWs 1 to 7 can be accepted by the courts, it would only conclude that the appellant had a motive to kill Jabeena, but then it could also give a reason for PWs. 1 to 7 to depose falsely against the appellant, in view of the tragic death of a loved one. Motive being aweapon, could cut both wayshelping or harming both the prosecution and the defence. Hence, we are of the considered view that if we are unable to place reliance on the evidence ofthen the evidence of PWs. 1 to 7 will not be sufficient to convict the appellant of the prosecution charge. Of course, the prosecution has established that the appellant was the only person in the company of Jabeena and her child at the relevant time on the fateful day. But this again stops the prosecution case in the realm of suspicion, which by itself cannot be substituted for hard evidence. Aware as we are of the fact, a budding life came to an unfortunate premature end, our jurisprudence will not permit us to base a conviction on the basis of the evidence placed by the prosecution in this case and the benefit of a reasonable doubt must be given to the appellant.