Gujarat High Court

Chetanbhai Natwarlal Shrimadi vs State Of Gujarat on 28 February, 2018

Author:
J.B.Pardiwala

Bench:
J.B.Pardiwala

R/CR.MA/4178/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION NO. 4178 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

==========================================================

1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?

2 To be referred to the Reporter or not ? No

3 Whether their Lordships wish to see the fair copy of the No
judgment ?

4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?

==========================================================
CHETANBHAI NATWARLAL SHRIMADI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
DARSHIT R BRAHMBHATT for the PETITIONER(s) No. 1
DARSHIT R BRAHMBHATT(8011) for the PETITIONER(s) No. 2,3
MS. THAKKAR, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s)
No. 1
==========================================================

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 28/02/2018

ORAL JUDGMENT

1. This is an application at the instance of the original
accused Nos. 3,4 and 5 for anticipatory bail in connection with

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a first information report registered with the Nadiad West
Police Station dated 30th October, 2017 being I-C.R. No.48 of
2017 for the offence punishable under sections 302, 304(B),
203 read with 114 of the
Indian Penal Code
and
sections 3
and
of the Dowry Prohibition Act.

2. The first information report came to be lodged by the
father of the deceased. The first information report is extracted
hereunder;

"I, Jayantibhai Devchandbhai Shrimali, age - 59 years,
occupation - retired, resident of 29, Ashray Park Society,
Behind Vasudev Marble, Pij Road, Nadiad, Mobile no.
9979259283.

I state that I am residing at the above mentioned address
with my family. I was working as a Forest Officer in the
Nadiad Division and superannuated on 30/04/2016, and
at present, I am living a retired life. I have two children.
One son and one daughter, namely, Bhavin and Neelam.
Bhavin is elder and Neelam was younger to Bhavin.

The marriage of my daughter Nilamben was solemnized
on 29/05/2015 with Nilay Kumar Natvarlal Shrimali,
resident of B/12, Satyanarayan Society, Opp. Varia
Prajapari Wadi, Juna Dumral Road, Nadiad as per the
customs of our community. At the time of the marriage, I
had given clothes and household articles to my daughter.
After the marriage, my daughter was residing at her
matrimonial home with her husband and mother-in-law
Narmadaben Natvarlal Shrimali. Initially, the marriage
life of my daughter was happy but after about three
months of marriage, when my daughter used to visit my
house, she told me that her husband is unemployed, and
at present we are even unable to meet the expenses of
the house. She also told me to help them until Nilay gets
a job. Therefore, as my son-in-law did not had any job,
with the purpose that they do not face any difficultly in
their household expenses, I used to give ten to fifteen
thousand rupees to my daughter every month as
requested by her. Me and my other relatives frequently

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visited her house and helped them financially so that
they do not face any difficultly.

After six months of the marriage, when my daughter
used to visit my house, she told me that Nilay is drinking
liquor and he is pressurizing me to bring money from me.
My mother-in-law Narmada Bahen is also harassing me
regarding household work. She is taunting me by saying
that you are fat, your father has not given anything at
the time of marriage, we do not want to keep you and we
are going to bring another wife for Nilay. They are
pressurizing me very much to bring money from you.
Moreover, my jeth (Husband's elder brother) Chetanbhai
Natvarbhai Shrimali working at Limkheda, my jethani
(husband's elder brother's wife) Mamtaben Chetanbhai
Shrimali working as a teacher in Rajupura village near
Galteshwar and my nanand (husband's sister) Hetalben
Bhavinbhai Shrimali, though are residing at Anand, yet
they come to my house quite often during holidays on
Saturday and Sunday and pick up quarrel with me
regarding the household work and dowry and instigate
my husband against me in order to drive me out of the
house. Therefore, my husband is beating me too much.
She told me that my in-laws have been harassing me too
much and I am fed up due to their harassment. Though I
am pregnant at present, my in-laws make me toil too
much.' As my daughter used to tell this to me, my wife
Kantaben, son Bhavin, Rasmika - wife of Bhavin and I
used to appease her that your in-laws will mend their
ways soon and you will have good life. We used to keep
her at our house for some days and then send her back
to her matrimonial home. I also used to visit her
matrimonial home and persuade them to behave well
with Nilam. Sometimes, when I used to visit the
matrimonial home of Nilam on holidays, I also found
Chetanbhai - jeth of Nilam, Mamtaben Chetanbhai -
jethani of Nilam and Hetalben Bhavinbhai - nanand of
Nilam there. I also told them to behave well with Nilam.
Therefore, they told me that though your daughter is
very fat, we have kept her. They used to pressurize me
that during her Shrimant, you will have to give
ornaments as demanded by us and also give gifts to our
relatives. Moreover, Narmadaben - mother-in-law of my
daughter stated that we do not want your daughter and
she stated in my presence that get her abortion done.
Therefore, with the intention that her matrimonial life

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goes on well, I stated that I will do as stated by them.
Despite the same, Nilay and his mother Narmadaben
came to my house and stated that your daughter is fat
and she is not doing any work and in this way they used
to pressurize for divorce of my daughter. At the time of
Shrimant ceremony of my daughter, I gave gold and
silver ornaments to my daughter and son-in-law costing
about ten lakhs as demanded by the in-laws of Nilam.
After the shirmant ceremony, Nilam was brought to our
house and son named Isan was born on 17/10/2016. I
have also given jiyanu (gift given at the time of birth) of
my daughter approximately of fifty thousand rupees as
demanded by her in-laws. My daughter went to her
matrimonial home but harassment of her husband and
above mentioned in-laws continued. Nilam used to tell
this to me when she used to come to my house. When I
retired on 30/04/2016, I received money of my
retirement benefits. The husband of Nilam and her
mother-in-law pressurized and harassed her and sent her
to my house to bring Rs, 20,0000/- from me in order to
buy a house. Therefore, I told my daughter that we need
to buy a new house. I will give you whatever money is
left of my retirement benefits. After persuading her in
this manner, I gave her Rs. 25,000/- in cash and I also
made fixed deposit of one lakh rupees in the name of my
daughter in BOB, Ashram Road Branch, Nadiad. I used to
give financial support to my daughter so that her
matrimonial life goes on well. But the in-laws of my
daughter took disadvantage of my support and they used
to harass my daughter to bring money from me.

The house in which I am residing in Nadiad at present, is
a newly purchased house and we vacated the old house
located in Pagar Society, Pavanchakki Road, Nadiad. My
son-in-law Nilaykumar quarreled with my daughter in
order to get the old house registered in his name and she
was even beaten. My daughter informed me regarding
this. Therefore, I had even told that I will transfer that
house in his name. Despite the same, as my daughter
was fat, my son-in-law did not like her and she was very
much harassed to send her out and get divorce and even
the above named persons were instigating my son-in-law
in order to send my daughter Nilam out of house and
they were harassing her too much.

Yesterday on 29/10/2017, I went to Ganj Bazar in Nadiad

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in the evening and when I went back to my house at
quarter past six o'clock in the evening, my son
Bhavinkumar came to my house in very much frightened
condition and he informed me that 'I received phone call
of Nilaykumar on my phone before some time and he told
me that something has happened to Nilam and it is
informed that you come to my house with your family
members. Phone call of Nilam was even received at one
o'clock in the afternoon and she wanted to tell something
in frightened tone. But I had felt that someone had
snatched away her phone. As I was out, I had told my
wife to go to the house of Nilamben.' As he stated this, I
was worried about my daughter Nilam and my wife, my
son Bhavin, daughter-in-law Rasmikaben and I left for the
house of Nilam. In the meantime, my son received phone
call from my son-in-law Nilaykumar and as he told us to
come to Sanjay Hospital, Nadiad, we went to Sanjay
Hospital, Nadiad at half past six o'clock yesterday. My
daughter was lying unconscious over there and she was
not speaking anything. I met my son-in-law, Chetanbhai -
jeth of Nilam, Mamtaben - jethani of Nilam and other
persons and they told me that when Nilam was mopping
the floor at the upper floor in our house at quarter past
six o'clock in the evening, she fell down and became
unconscious. As they stated this and as my daughter was
fat, I thought that she might have felt uneasy and
therefore, I stayed in Sanjay Hospital, Nadiad. In the
meantime, the doctor of Sanjay Hospital examined Nilam
and stated that take her to bigger hospital. Therefore, we

- the family members of Nilam and above mentioned
persons of her matrimonial home, got together and took
Nilam to Mahagujarat Hospital, where the doctor
examined Nilam and informed that she has died and as it
was told to take her to Nadiad Civil, we - all the above
mentioned persons took her to Nadiad Civil. My daughter
had black contusion marks from front side of throat
extending till both the ears. The doctor informed the
police regarding this and as it was night time yesterday,
postmortem of dead body of my daughter Nilam was not
performed. But, as postmortem of her dead body was
performed by panel team of doctors of Nadia Civil, the
cause of death was given that Nilam had died due to
suffocation due to strangulation of throat. Therefore, I
was surprised. Though my daughter committed suicide
by strangulation due to harassment of her in-laws, the
above mentioned persons of her matrimonial home,

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stated that Nilam became unconscious as she fell down
while mopping and they did not inform me the real cause
of Nilam's death.

My daughter Nilam, aged 27 years, was given too much
physical and mental torture by her husband, mother-in-
law Narmadaben, jeth Chetanbhai, jethani Mamtaben and
nanand Hetalben Bhavinbhai regarding household work
and dowry and for getting divorce as my daughter was
fat and as they did not want to keep her and they forced
my daughter to commit suicide and being fed up of their
harassment, my daughter died by strangulating her
throat yesterday on 29/10/2017 at her house before
quarter past six o'clock in the evening. Therefore, this is
my complaint to take legal action against all the above
mentioned persons.

The facts above of my complaint are true and correct as
dictated by me. "

3. Thus, it appears that the deceased was married to the
original accused No.1, namely, Nilaykumar Natvarlal Shrimali.
The marriage was solemnized on 29th May, 2015. In the
marriage, a son was born, namely, Isant. In the first
information report, it has been alleged that the deceased was
not happy at her matrimonial home. There was incessant
harassment at the end of the husband, mother-in-law and the
applicants herein. I take notice of the fact that the applicant
No.1 is the brother of the husband, the applicant No.2 is the
wife of the applicant No.1 and the applicant No.3 is the
married sister of the husband. It is also alleged that there was
demand for dowry and as the deceased was quite fat, the
husband, over a period of time, developed an aversion for her.
On the date of the incident, the deceased was quite disturbed
due to the harassment at the end of the accused persons and
took a drastic step of committing suicide by hanging from a
ceiling fan with the aid of a Dupatta.

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4. The applicants herein came to be arrested by the police
in connection with the alleged offence. The applicants
preferred the Criminal Misc. Application No.1321 of 2017 for
regular bail in the court of the learned Principal Sessions Judge,
Kheda at Nadiad. It appears that while the court concerned
heard the regular bail application filed by the applicants
herein, it also jointly heard the Criminal Misc. Application
No.1320 of 2017 filed by the mother-in-law of the deceased.
By a common order dated 7th November, 2017, the bail
application of the applicants herein came to be allowed
whereas the bail application of the mother-in-law came to be
rejected. The reasonings assigned by the court below while
passing the common order dated 7th November, 2017 are
extracted hereunder;

"4) Ld. Advocate Mr. D.R. Brahmabhatt for both the
accused have mainly contended that this is first bail
application of the applicants. The applicants of Cr. M. A.
No.1321/2017 reside outside of Nadiad and they are
government servants. Amongst the applicants, applicant
no.1 is brother-in-law (Jeth) of the deceased, no.2 is
sister-in-law (Jethani) and no.3 is brother-in-law (Nandoi),
whereas, applicant of Cr. M. A. No.1320/2017 is mother-

in-law of the deceased. The cause of action and mens rea
are not shown anywhere in the said complaint and cause
of suicide is also not mentioned in it. There are only
vague allegations. No dowry has been demanded. The
applicants are totally innocent and they are falsely
implicated. Amongst the applicants of both the
applications, three accused are ladies. In the
circumstances, it is prayed to release the applicants on
appropriate terms and conditions.

5) Ld. P.P. Mr. P.S. Dhora for the state has mainly
contended that the applicant of Cr. M.A. No.1320/2017 is
mother-in-law of the deceased, history given before the
doctor involves the applicants. As per P.M. note, death is

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caused due to hanging. Married life was of two years.
There is one child and besides this, the incident has
happened in her in-laws house at Nadiad only.
Investigation is pending and therefore, it is prayed not to
release the applicants on bail.

6) Looking to the case papers, the complainant
Jayantibhai Devchandbhai Shrimali has lodged complaint
before the police stating that he stays at Nadiad and his
children includes Nilamben. Nilamben got married to
Nilaykumar Natvarlal Shrimali on 29/05/2015 at Nadiad
and his daughter was residing with her husband and her
mother-in-law Narmadaben. In the beginning, everything
was going well upto three months. When his daughter
came to the house of the complainant, she told that Nilay
has lost his job and told to help her, therefore, the
complainant gave her ten to fifteen thousand rupees.
After six months of marriage, his daughter came to his
house and told that Nilay is addicted to liquor and he
pressurizes to bring money from you. My mother-in-law
harasses me regarding household work and says that you
are fat and your parents haven't given anything on the
occasion of the marriage. She stated that she wants to
get another marriage of Nilay to be done and pressurizes
me to bring money. Brother-in-law (Jeth) Chetanbhai,
sister-in-laws (Jethani) Mamtaben and (Nanand) Hetalben
used to come on the weekends of Saturday-Sunday and
used to instigate Nilay regarding household work, dowry
and to drive her out from the house. Nilay beats her up
and also does not provide proper food to eat. Thereafter,
he used to send his daughter back to the in-laws house
after persuading her. The said persons had taken
jewellary of about ten lakh rupees forcefully at the time
of Shrimant and also told the complainant that your
daughter is fat and we do not want her and stated to get
her foetus aborted. He gave Jiyanu for new born baby
boy of fifty thousand rupees. As the complainant retired
from the service, he told to give twenty lakh rupees to
Nilam out of the amount he received. Her husband and
mother-in-law pressurized her and sent her to the house
of the complainant. But the complainant could not give
the money as he wanted to buy new house. He sent her
daughter back with twenty five thousand rupees. He
deposited one lakh rupees in Fixed Deposit at Bank of
Baroda, Ashram Road Branch, Nadiad in the name of his
daughter. He was stated to transfer the present house in

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the name of his son-in-law and quarreled for the same.
They were harassing her to get divorce and to make her
get out as she was fat. Meanwhile, Bhavinbhai, son of the
complainant met him on 29/10/2017 and informed that
Nilaykumar telephoned and stated that something has
happened to Nilam. At one o'clock in the afternoon,
Nilam made telephone. She was found scarred and she
wanted to say something but he felt that phone was
snatched from her. The complainant, his wife, son and
daughter-in-law got out and went to Sanjiv Hospital. His
daughter was unconscious. The accused stated him that
Nilam fell down when she was mopping on the upper
floor and went unconscious. The doctor of Sanjiv Hospital
told to take Nilam to big hospital and therefore, all took
Nilam to Mahagujarat Hospital, there doctor checked her
and declared her dead. His daughter had black marks
from front part of the throat till both ears. Thereafter, she
was taken to the Civil Hospital, where it was stated by
the doctor in P.M. that cause of death was asphyxia due
to strangulation. Though Nilam had strangulated, the in-
laws persons had stated that Nilam fell down when she
was mopping on the upper floor and went unconscious.
Thus, as her daughter was fat and they did not want to
keep her with them, they subjected her to physical and
mental torture in order to have divorce and thus,
compelled her to commit suicide.

7) Considering all the facts mentioned here-above, it is
alleged that the complainant's daughter Nilam has
committed suicide for the reasons mentioned in the
complaint and statements of the witnesses are
corroborating it. It is mentioned in the P.M. note that
death was caused due to strangulation, which is taken
into consideration. The applicant no.1 - Brother-in-law
(Jeth) and no.2 - Sister-in-law (Jethani) of Cr. M.A.
No.1321/2017 are residing at Limkheda and the applicant
no.3 - Sister-in-law (Nanand) is residing at Anand, that
means, all these three applicants are not residing at
Nadiad and it is alleged that they tortured her on
holidays, which are taken into consideration. Whereas
the applicant of Cr. M.A. No.1320/2017, Narmadaben is
mother-in-law of the deceased and it appears from the
police investigation papers that she was residing with
Nilam at Nadiad. Considering all the above mentioned
facts, it is noted that the role of the applicants of Cr. M.A.
No.1320/2017 are different to some extent from the

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applicant of Cr. M.A. No.1321/2017.

8) It is settled principle of law that the evidences are
not to be appreciated at the time of deciding the bail
application by analyzing it at length, but it is required to
find as to whether there is prima-facie case against the
applicant or not and whether the applicant is entitled to
be released on bail or not. Evidence in the present
application is not appreciated after analyzing it. The
observations made regarding the said application are
limited to the decision as to whether the bail application
should be allowed or not and it is hereby clarified that
the said observations shall not affect the trial of the case.

9) Considering the facts, details, circumstances and
role of the applicants of both the applications, it does not
deem just and reasonable to exercise judicial discretion
conferred under Section - 439 of the Cr. P.C. against the
applicant of Cr. M.A. No.1320/2017, whereas it deems
just and reasonable to exercise judicial discretion
conferred under Section - 439 of the Cr. P.C. against the
applicants of Cr. M.A. No.1321/2017 and to release them
on several strict conditions, following order is passed in
the interest of justice.

ORDER

1) Criminal Miscellaneous Application No.1320/2017 is
hereby rejected, whereas, Criminal Miscellaneous
Application No.1321/2017 is hereby allowed.

2) The applicants of Criminal Miscellaneous
Application No.1321/2017 are hereby ordered to be
released on regular bail for the punishable offences
under
Section-498(A)
,
,
of I.P.C. in the case of I-
C.R. No.489/2017 registered with Nadiad West Police
Station on furnishing bail bond of Rs.10,000/- (Rupees
Ten Thousand Only) each and surety of like amount
subject to following conditions.

Conditions

1. Not to temper with the evidences of the prosecution
and not to make direct or indirect attempts to induce the
witnesses by temptations or allurements.

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2. To maintain peace and tranquility and not to get
involved in any other offences.

3. To furnish present as well as permanent residential
address in the bail bonds before Ld. Lower Court and not
to change the same without prior permission of the court
having jurisdiction. Applicants to produce their mobile
numbers and land-line numbers and not to change the
same without permission of the Honorable Court.

4. Not to leave the State of Gujarat without prior
permission of this Court.

5. To submit Original Passport before the Ld. Lower
Court within three days after release on bail, if any, and if
not having Passport, Affidavit regarding the same before
the Concerned Lower Court within three days.

6. To remain present before investigating officer as
and when called for and to co-operate in the police
investigation for the offence.

7) The applicant no. 1 shall have to mark his presence
before the concerned Police Station during 1st to 5th of
every English month between 10:00 a.m. and 02:00 p.m.
till Charge-sheet is filed and the investigating officer shall
forward copy of the record wherein the applicant has
marked his presence and if not remained present, report
thereof to the Ld. Lower Court from 6th to 10th of
concerned English month and the applicant as well as the
investigating officer shall follow this instructions strictly."

5. It appears from the materials on record that the police
completed the investigation and filed charge-sheet for the
offence punishable under sections 498A, 302, 304B, 203 read
with 114 of the
Indian Penal Code
and
sections 3
and
of the
Dowry Prohibition Act. It appears that at the end of the
investigation, the police reached to the conclusion that the
case is one of homicidal death and not suicidal death. In such
circumstances, the first informant, i.e,. the father of the

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deceased preferred an application under
section 439(2)
of the
IPC for the cancellation of bail of the three applicants. The
Criminal Misc. Application No.1513 of 2017 filed by the original
first informant for the cancellation of bail of the three
applicants herein came to be allowed by the Principal Sessions
Judge, Kheda at Nadiad vide order dated 6th February, 2018.
The reasonings assigned by the court below while cancelling
the bail of the three applicants herein are extracted hereunder;

"Looking to the above reference, the present application
has not been made by the prosecution. But, it has been
made on behalf of the original complainant and as
discussed above, according to the judgment of Hon'ble
Supreme Court, the original complainant can prefer an
application for cancellation of bail. In these
circumstances, Hon'ble High Court has also observed
that, if the more serious offence is revealed, the
prosecution should make an application to cancel the bail
or for modification of order. Looking to all these facts,
the offence under section-306 of
I.P.C
. was constituted,
wherein the imprisonment of 10 years was provided.
Now, the offence is under section-302 of
I.P.C
. which
provides the punishment of life imprisonment or death.
In such circumstances, as the more serious offence is
revealed, the original complainant has made the present
application, which has been taken into consideration.

(8) The following grounds and issues have been taken
into account to decide the application for
cancellation of the bail.

1. When aforesaid respondents were released on the
bail earlier, they were charged
u/s 306
of the I.P.C.
and maximum punishment for the said offence is 10
years.

2. Thereafter, police investigation has been conducted
and it is revealed during the investigation that
offence
u/s 302
of the I.P.C. is made out and
accordingly, report to add section was filed in the
lower court and the same was granted. Thereafter,
charge-sheet has been also filed against present

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applicants and other co-accused u/s 302 of I.P.C.

3. The applicants were charged u/s 306 of the I.P.C.

when their earlier bail application was decided. The
strangulation was shown as cause of death in the
P.M. note interalia it was also mentioned therein
that final cause of death could be known after
receiving viscera and histopathology report.
Thereafter, it has been stated in the P.M. note on
09/01/2018 that looking to histopathological report
and F.S.L. report, final cause of death was
strangulation. Under these circumstances, final
cause of death was not mentioned in the P.M. Note
at the time of deciding earlier bail application and
only probable cause was mentioned. Whereas
strangulation has been shown as final cause of
death after receiving F.S.L. report, and the said fact
has been taken into account.

4. Earlier, charge
u/s 306
of the I.P.C. was levelled and
maximum punishment for the said offence was 10
years. Now,
section 302
of the I.P.C. has been
added, and maximum punishment for the said
offence is life imprisonment and death penalty.
Under these circumstances, more serious charge
has been revealed on the completion of police
investigation than was found earlier.

5. The bail was granted for the offence u/s 306 of the
I.P.C - less serious offence earlier, whereas more
serious offence is being made out and respondents
have been charged u/s 302 of the I.P.C.

6. As per the aforesaid judgement of the Hon'ble High
Court, original complainant has filed application for
cancellation of the bail. As per the judgment of
Hon'ble Supreme Court, original complainant can
make this nature of application.

(9) It is a well established principle of the law that
evidences are not required to be analyzed in depth and
evaluated while deciding bail application. But, it is to be
seen as to whether prima facie case is made out against
the accused or not and as to whether applicant is liable
to be released on bail or not. The evidences have not
been analyzed and evaluated in connection with the
present application. The observations made in
connection with aforesaid application are restricted to
deciding as to whether this bail application should be
granted or not. It is clarified that trial of the case will not

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bear any effect of these observations.

(10) Considering all the facts, issues and reasons
discussed above, and considering the fact that, now
more serious offence has been revealed to have occurred
and the final cause of death is mentioned as
strangulation in the P.M. note after granting the previous
bail application, the bail granted to the present
opponents in Criminal Miscellaneous Application
NO.1321/2017, is liable to be rejected. Therefore, below
final order is passed in the interest of justice.

ORDER

(1) The bail, granted to the present opponents Nos. 1
to 3 as per the order dated: 07/11/2017 passed in
Criminal Miscellaneous Application No.1321/2017, is
hereby cancelled.

(2) The above opponent Nos. 1 to 3 shall surrender
themselves before the Investigation Officer / Competent
Officer, within 15 days."

6. As the bail came to be cancelled by the Sessions Court,
the applicants herein apprehended arrest once again by the
police. In such circumstance, the three applicants preferred
the Criminal Misc. Application No.171 of 2018 for anticipatory
bail in the Sessions Court. The application filed by the
applicants for anticipatory bail came to be rejected by the
court below by order dated 9th February, 2018. The reasonings
assigned by the court below while rejecting the anticipatory
bail application are extracted hereunder;

"(6) The applicants had earlier filed Criminal
Miscellaneous Application No. 1321/2017
u/s 438
of
Cr.P.C. for anticipatory bail in this court and the same
was related to the offence
u/s 306
of the I.P.C. This court
granted the same on 07/11/2017. Thereafter,
sections
,
304(B)
of the I.P.C. were added during the police
investigation. The charge sheet was filed in the lower
court in this regard. Therefore, original complainant

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Jayantibhai Devchandbhai Shrimali filed Criminal
Miscellaneous Application no. 1513/2017 against these
applicants
u/s 439(2)
of Cr.P.C. for cancellation of bail in
this court. This court granted the said application of the
complainant seeking cancellation of the bail vide order
dated 06/02/2018 and cancelled anticipatory bail of the
applicants and ordered them to surrender before the
Investigating Officer/Competent Authority within 15 days.

The following grounds and issues were taken into
account to decide application for cancellation of the bail
in para no. 8.

(8) The following grounds and issues have been taken
into account to decide the application for
cancellation of the bail.

1. When aforesaid respondents were
released on the bail earlier, they were
charged
u/s 306
of the I.P.C. and
maximum punishment for the said
offence is 10 years.

2. Thereafter, police investigation has been
conducted and it is revealed during the
investigation that offence
u/s 302
of the
I.P.C. is made out and accordingly,
report to add section was filed in the
lower court and the same was granted.

Thereafter, charge-sheet has been also
filed against present applicants and
other co-accused u/s 302 of I.P.C.

3. The applicants were charged
u/s 306
of
the I.P.C. when their earlier bail
application was decided. The
strangulation was shown as cause of
death in the P.M. note interalia it was
also mentioned therein that final cause
of death could be known after receiving
viscera and histopathology report.

Thereafter, it has been stated in the P.M.
note on 09/01/2018 that looking to
histopathological report and F.S.L.
report, final cause of death was
strangulation. Under these
circumstances, final cause of death was
not mentioned in the P.M. Note at the
time of deciding earlier bail application

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and only probable cause was mentioned.

Whereas strangulation has been shown
as final cause of death after receiving
F.S.L. report, and the said fact has been
taken into account.

4. Earlier, charge
u/s 306
of the I.P.C. was
levelled and maximum punishment for
the said offence was 10 years. Now,

section 302
of the I.P.C. has been added,
and maximum punishment for the said
offence is life imprisonment and death
penalty. Under these circumstances,
more serious charge has been revealed
on the completion of police investigation
than was found earlier.

5. The bail was granted for the offence u/s
306 of the I.P.C - less serious offence
earlier, whereas more serious offence is
being made out and respondents have
been charged u/s 302 of the I.P.C.

6. As per the aforesaid judgement of the
Hon'ble High Court, original complainant
has filed application for cancellation of
the bail. As per the judgment of Hon'ble
Supreme Court, original complainant can
make this nature of application.

(7) After aforesaid Criminal Miscellaneous Application
No. 1513/2017 was decided, applicant filed present
application u/s 438 of Cr.P.C. for anticipatory bail wherein
present applicants are charged u/s 302 of the I.P.C.

(8) The following issues and grounds have been taken
into account while deciding present bail application.

1. The reason no. 1 to 6 mentioned in para 8 of
Criminal Miscellaneous Application No.
1513/2017 seeking cancellation of bail have
been taken into account.

2. The order granting anticipatory bail to the
applicants for the offence
u/s 306
of the I.P.C.
was passed earlier, but thereafter, as stated
above, application seeking cancellation of bail
was granted. The
section 302
of the I.P.C was
added. As the said offence was more serious,
the bail was cancelled.

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3. When application for anticipatory bail was
granted, charge
u/s 306
of the I.P.C. was
levelled, whereas charge
u/s 302
of the I.P.C.
for more serious offence has been now
levelled.

4. The final opinion has been given in the P.M.
note in January, 2018 after receiving F.S.L.
report that deceased died due to
strangulation.

5. Maximum punishment for the said offence is
life imprisonment or death penalty.

6. Further, other co-accused Narmadaben w/o.

Natwarlal Shrimali filed Criminal Miscellaneous
Application No. 1320/2017 and Criminal
Miscellaneous Application No. 118/2018 in this
court, and the same were rejected by this
court. Thereafter, said accused filed Criminal
Miscellaneous Application No. 27713/2017
before Hon'ble High Court and the same was
withdrawn. Thereafter, other co-accused
Nilaykumar Natwarlal Shrimali, who is the
husband of the deceased, filed Criminal
Miscellaneous Application No. 150/2018 in this
court, and the said application was rejected by
this court on 08/02/2018. All these facts have
been taken into account.

7. The applicants have been charged for serious
nature of offence.

(9) It is a well established principle of law that
evidences are not required to be analyzed in depth and
evaluated while deciding bail application. But, it is to be
seen as to whether prima facie case is made out against
the accused or not and as to whether applicant is liable
to be released on bail or not. The evidences have not
been analyzed and evaluated in connection with the
present application. The observations made in
connection with aforesaid application are restricted to
deciding as to whether this bail application should be
granted or not. It is clarified that trial of the case will not
bear any effect of these observations.

(10) Thus, in view of aforesaid all the facts, gravity
of the offence, aforesaid issues and grounds and in
entirety, as it does not appear to be just, reasonable and
appropriate to use judicial discretion in favour of the

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applicants
u/s 438
of Cr.P.C., the following final order is
passed.

ORDER

The bail application being Criminal Miscellaneous
Application No. 171/2018 is rejected."

7. In such circumstances, referred to above, the applicants
have come up before this Court with a prayer for grant of
anticipatory bail.

8. The facts emerging from the materials on record are that
the first information report was registered for the offence
punishable under sections 498A, 306 read with 114 of the
IPC

and
sections 3
and
of the Dowry Prohibition Act. At the time
when the first information report was registered, the case of
the first informant was very specific. The case of the first
informant was that his daughter, i.e, the deceased had
committed suicide at her matrimonial home on account of the
incessant harassment and torture at the end of the accused
persons. On completion of the investigation, the charge-sheet,
ultimately came to be filed for the offence of murder, or in the
alternative, for the offence of dowry death. The three
applicants were already enlarged on regular bail by the
Sessions Court. It is only when the charge-sheet came to be
filed for the offence of murder as well as dowry death that the
first informant thought fit to file an application to get the bail
of the three applicants cancelled. Ultimately, the Sessions
Court thought fit to cancel the bail. The three applicants
herein, once again, preferred an application for anticipatory
bail before the Sessions Court, which came to be rejected. It
appears that while passing the order of cancellation of bail, the
court below suspended the operation of the order for few days

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to enable the applicants to avail of appropriate remedy before
the appropriate forum in accordance with law.

9. In such circumstances, referred to above, I inquired with
the learned APP as to on what basis the Investigating Officer
filed the charge-sheet for the offence of murder punishable
under
section 302
of the IPC as well as for the offence of dowry
death punishable under
section 304B
of the IPC. I had to put
this question to the learned APP because at the time when the
applicants herein were released on regular bail by the court
below, the postmortem report was very much before the
Sessions Court. The cause of death assigned in the
postmortem report, on receipt of the Histopathological report
is cardiorespiratory arrest due to mechanical asphyxia
following strangulation. The learned APP clarified that the
Investigating Officer had a talk with the Medical Officer as
regards the fact whether the case is one of suicidal
strangulation or homicidal strangulation. According to the
learned APP, the Medical Officer, with whom, the Investigating
Officer had a talk, prima facie, expressed his opinion that the
case is one of homicidal death and not suicidal. I inquired with
the learned APP whether there is anything in writing in this
regard.. To put it in other words, whether the Investigating
Officer has obtained any such opinion from the concerned
medical officer in writing. The learned APP, after taking
instructions from the Investigating Officer, submitted that
there is no such opinion in writing. It was just an oral
discussion between the Investigating Officer and the doctor
concerned. According to the learned APP, in such
circumstances, ultimately when time came to file the charge-
sheet, the same was filed for the offence of murder.

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10. Mr. Brahmbhatt, the learned counsel appearing for the
applicants submitted that there is nothing on record on the
basis of which it could be said that the case is one of homicidal
death. According to him, the theory which is now being put
forward by the prosecution that all the accused persons,
together, strangulated the deceased to death by a Dupatta, is
an afterthought. The postmortem report, prima facie, would
indicate that the case is one of suicide by hanging. Mr.
Brahmbhatt, at this stage, invited my attention to the two
statements of the independent witnesses residing in the
neighbourhood. According to Mr. Brahmbhatt, these two
statements of the independent witnesses completely rules out
the theory of homicidal strangulation. The two statements,
which the learned counsel for the applicants is referring to, are
one of Manibhai Madhavbhai Maheriya recorded on 30th
October, 2017 and the another one is of his son Ravikumar
Manibhai Maheriya recorded on 30th October, 2017. The
statement of Manibhai is extracted hereunder;

"My name is Manibhai Madhavbhai Maheriya, age 63,
Occupation : Retired, resident of B/5, Satya Narayan
Society, Opp. Sharda Mandir School, Nadiad, Ta.Nadiad,
Mo.No. 95868 78110.

On being personally asked, I state that I am residing at
the above mentioned address alongwith my family.
Presently, I live retired life. I am native of Karoli,
Ta.Nadiad. I have one son and one daughter. I have
studied upto MA Part-1.

Today as you stated me the facts of the complaint being
I.C.R. No.48/2017 registered at Nadiad (W) Police Station
under sections-498(a), 306, 304/B, 114 of the
IPC
and
Sections-3, 4 of the
Dowry Prohibition Act
, I state that
Narmadaben Natvarlal Shrimali is residing with her family

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in the house no.12, in front of my house. She retired from
service as a teacher. Her husband is expired. We are
their neighbors since years. They have three sons and
two daughters. Marriage of her son Nilay was solemnized
before two years with Nilamben of Nadiad. Nilam was
staying in her in laws' place. She has one son through
married life with her husband. Nilay, Nilam and
Narmadaben were staying in Nadiad and rest of the
children of Narmadaben were staying out because of
their service. But, they used to visit their house in Nadiad
during Saturday-Sunday and public holidays and at that
time they were staying together.

On 29/10/2017, I went to my village Karoli for the work of
farming in the morning at around eight o'clock and
returned in the evening at around Five o'clock. When I
was at my home, at around six o'clock in the evening,
Nilaybhai repeatedly shouted and called my son Ravi at
his house. Thereafter, I stated my son to visit Nilay's
house as I sensed some problem there. My son went
there. There was an uproar. As Mamtaben, wife of
Narmadaben's son Chetan came downstairs screaming, I
doubted something untoward there. When I reached to
first floor of Narmadaben's house, I found Nilam hanging
from ceiling fan with dupatta in the bedroom of the first
floor. Nilay was crying by holding her. At that time, other
people of my society also came there. All of them
together cut the dupatta tied with her neck and brought
her down. Her family members took her for the treatment
by the car of Kalpeshbhai Rohit residing in my society.
Firstly, she was taken to Sanjay Hospital and thereafter
to Mahagujarat Hospital where the doctor declared her
dead. I do not know as to why Nilam hanged herself. She
did not have any quarrel or dispute with her husband or
her in laws.

Such fact as dictated by me is true and appropriate as
per my dictation."

11. The statement of Ravi is extracted hereunder;

"My name is Ravikumar Manibhai Maheriya, age 27,
Occupation : Service, resident of B/5, Satya Narayan
Society, Opp. Sharda Mandir School, Nadiad, Ta.Nadiad,

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Mo.No. 98794 29098.

On being personally asked, I state that I am residing at
the above mentioned address alongwith my family. I am
serving as a Primary Teacher in village Desar, Ta.Savli
and I am unmarried.

Today as you stated me the facts of the complaint being
I.C.R. No.48/2017 registered at Nadiad (W) Police Station
under sections-498(a), 306, 304/B, 114 of the
IPC
and
Sections-3, 4 of the
Dowry Prohibition Act
, I state that
Narmadaben Natvarlal Shrimali is residing with her family
in the house no.12, in front of my house. She retired from
service as a teacher. Her husband is expired. We are
their neighbors since years. They have three sons and
two daughters. Marriage of her son Nilay was solemnized
before two years with Nilamben of Nadiad. Nilam was
staying in her in laws' place. She has one son through
married life with her husband. Nilay, Nilam and
Narmadaben were staying in Nadiad and rest of the
children of Narmadaben were staying out because of
their service. But, they used to visit their house in Nadiad
during Saturday-Sunday and public holidays and at that
time they were staying together.

On 29/10/2017, I went for some work to village Chuva in
the morning at around eleven o'clock and returned in the
evening at around Five o'clock. When I was at my home,
at around six o'clock in the evening, Nilaybhai shouted
and called me at his house. My father informed me to
visit Nilay's house as he sensed some problem there.
When I reached there, I found Nilam hanging from ceiling
fan with dupatta in the bedroom of the first floor. Nilay
was crying by holding her. At that time, other people of
my society and my father also came there. All of them
together cut the dupatta tied with her neck and brought
her down. Her family members took her for the treatment
by the car of Kalpeshbhai Rohit residing in my society.
Firstly, she was taken to Sanjay Hospital and thereafter
to Mahagujarat Hospital where the doctor declared her
dead. I do not know as to why Nilam hanged herself. She
did not have any quarrel or dispute with her husband or
her in laws.

Such fact as dictated by me is true and appropriate as
per my dictation."

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12. Let me, at this stage, also look into the report filed by the
Investigating Officer dated 9th November, 2017 in the court of
the JMFC, Nadiad for addition of
section 302
of the IPC in the
first information report. The report is extracted hereunder;

" Outward No. 2383/2017
The Office of the Police Inspector,
Nadiad - West Police Station,
Dist. Kheda-Nadiad.

Date : 09/11/2017

To,
The J.M.F.C.,
Nadiad Court,
Nadiad.

Sub :- To include section-302 of
I.P.C
. in the F.I.R. being I

- C.R.No. 48/2017 registered at Nadiad - West Police
Station, for the offence punishable u/s. 498(A), 306, 304-
B, 114 of
I.P.C
. and section-3, 4 of
Dowry Prohibition Act
.

I - D.V.Baldaniya, Police Inspector, Nadiad - West Police
station, respectfully submits that,

In the case of I - C.R.No. 48/2017 registered with the
Police Station, Nadiad - West, for the offence punishable
u/s. 498(A), 306, 304-B, 114 of
I.P.C
. and section-3, 4 of

Dowry Prohibition Act
, the complainant Jayantibhai
Devchandbhai Shrimali, residing at 29, Ashray Park
Society, Pij Road, Nadiad, lodged the complaint before
me on 30/10/2017 stating that after the passage of six
months of the marriage, his daughter Nilamben W/o.
Nilaykumar Shrimali, age : 27, residing at 12,
Styanarayan Society, Opp. Sharda Mandir School, Nadiad,
was subjected to physical and mental harassment
regarding household works, to bring dowry of twenty
lakhs, for having fat body and to give divorce by her
husband Nilaykumar Natwarlal Shrimali, mother-in-law
Narmdaben W/o Natwarlal Shankerlal Shrimali, her
brother and sister-in-law Chetanbhai Natwarlal Shrimali
and Mamtaben W/o. Chetankumar Natwarlal Shrimali,

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presently residing at Limkheda, Dist. Dahod and Rajpura
Teachers Quarters respectively and her sister-in-law
Hetalben W/o. Bhavinkumar Shrimali, presently residing
at A-2, Palav Tenement, Avsar Party Plot, Chikhodra
Road, Anand, all are originally resident of B-12,
Satyanarayan Society, Opp. Sharda Mandir School,
Nadiad, and thereby, in-laws of Nilamben abetted one
another in driving her to commit suicide. After being fed
up with such harassment caused by her in-laws, she had
strangulated herself by tying Duppta with ceiling fan on
the upper floor at her in-laws house at Satyanarayan
Society, Nadiad, on 29/10/2017 at 18 :15 hours. When
she was taken for the treatment by her in-laws, the
doctor declared her dead on the same day at 19:00
hours. As the complainant lodged the complaint in this
regard, I registered the offence against the said accused
persons vide aforesaid register number and sections on
30/10/2017 at 12:30 O'clock and took over the charge of
investigation. Thereafter, all the accused persons were
arrested on 30/10/2017 at 17:30 O'clock and sent to
judicial custody within time limit.

Today, on perusing the P.M. note of the deceased
Nilamben W/o. Nilaykumar Shrimali, age : 27, residing at
B-12, Satyanarayn Society, Opp. Sharda Mandir School,
Nadiad, the Medical Officer, Civil Hospital, Nadiad, has
opined that the deceased has died due to strangulation.
Therefore, as the accused persons have killed the
deceased by strangulating her and thereby, as the
offence punishable
u/s. 302
of I.P.C. has occurred, it is
requested to include the section - 302 of
I.P.C
. in the
complaint of the present offence. The P.M. note of the
deceased is enclosed. It may be noted. Dt : 09/11/2017. "

13. Mr. Brahmbhatt, the learned counsel submitted that
indisputably, the applicants are residing separately. On the
date of the incident, being a weekend, the applicants decided
to visit the house of their mother, and in such circumstances,
they were present in the house when the deceased committed
suicide. He submitted that the deceased committed suicide in
her room situated on the first floor of the house by hanging
herself from a ceiling fan with the aid of a Dupatta.

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14. The principal argument of the learned counsel appearing
for the applicants is that the medical evidence on record does
not rule out the possibility of suicide on the part of the
deceased. In fact, according to the learned counsel, the
medical evidence on record only points towards the theory of
suicide. He submitted that there is nothing to indicate that the
death was caused by strangulation, i.e. by pressing the neck of
the deceased. Although, at this stage, the medical opinion,
according to the Investigating Officer, in this case, is one of
strangulation by suicide, yet if the entire medical evidence is
looked into in details, it only substantiates the theory of suicide
by hanging. The learned counsel appearing for the applicants
vehemently submitted that it is the question of personal liberty
of the applicants and if there is a reasonable doubt as regards
whether the case is one of homicidal strangulation or suicidal
hanging, then the benefit of doubt should go to the accused
persons. The argument proceeds on the footing that if the
court below did not find any case against the applicants so far
as abetting the commission of suicide is concerned, then there
is no reason to believe that the applicants would go to the
extent of strangulating the deceased to death along with the
husband and the mother-in-law of the deceased.

15. In such circumstances, referred to above, the learned
counsel for the applicants pray that there being a considerable
doubt as regards the alleged complicity of the accused persons
in the crime, discretion may be exercised in favour of the
applicants and they be granted the relief of anticipatory bail.

16. On the other hand, this application has been vehemently

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opposed by Ms. Thakkar, the learned APP appearing for the
State. The learned APP submitted that even if there is any
doubt, at this stage, as regards whether the case at hand is
one of homicidal death or suicidal hanging, the applicants do
not deserve to be granted any relief. According to the learned
APP the principle of rule of reasonable doubt will not apply at
the stage of bail. This principle of rule of reasonable doubt will
apply at the stage of trial, i.e. at the time when the Trial Court
has to appreciate the overall evidence on record. At this stage,
according to the learned APP, all that needs to be looked into is
whether there is a prima facie case against the applicants or
not. The learned APP submits that the words used in
section
Cr.P.C are "reasons to believe". According to the learned
APP, the postmortem report does not completely rule out the
theory of the deceased being strangulated to death by the
accused persons with a Dupatta. It is submitted that it is only
when the expert witnesses will enter the witness box that the
picture would be clear. At this stage, this Court may not go into
the question whether the case is one of homicidal death or
suicidal death.

17. This application has also been vehemently opposed by
Mr. Tejas Barot the learned counsel appearing for the original
first informant. I permitted Mr. Barot to make his submissions
as I thought that his assistance would be of some help to this
Court having regard to the issue in question. Mr. Barot
submitted that the case is one of homicidal death. According to
him, the injuries which have been noted in the postmortem
report do point towards the theory of homicidal death or, at
least, creates a considerable doubt in that regard. Mr. Barot
also submitted that even if there is any doubt in this regard, at

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this stage, the benefit should not go to the applicants. He
submitted that the issue in question can be gone into by the
Trial Court at the stage when the expert witnesses would enter
the box. In such circumstances, referred to above, Mr. Barot
prays that there being no merit in this application, the same be
rejected.

18. Having heard the learned counsel appearing for the
parties and having considered the materials on record, the
only question that falls for my consideration is whether I should
exercise my discretion in favour of the applicants.

19. As noted above, the applicants were already released on
regular bail by the order of the Sessions Court way back on 7th
November, 2017. It is only when the Investigating Officer
entertained a doubt in his mind after talking to the Medical
Officer concerned that
section 302
of the IPC came to be
added and the bail of the three applicants was ordered to be
cancelled. Thus, the only point for my consideration, at this
stage, is whether there is any substance in the theory of
homicidal death put forward by the prosecution.

20. Mr. Brahmbhatt invited the attention of this Court to one
Division Bench decision of this Court, to which, I was a party.
The Division Bench decision of this Court was rendered in a
Criminal Appeal No.2233 of 2009 dated 29.04.2014 filed by a
convict-accused, and in the said appeal, the issue was whether
the case was one of homicidal death or suicidal hanging. While
deciding the said appeal, the Division Bench explained the
term asphyxia including suffocation, hanging and
strangulation. As the learned counsel appearing for the

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applicants seeks to rely upon the same, I deem it fit to extract
the observations hereunder;

"26.1 What is asphyxia?

Asphyxia may be defined as primarily a state, or series of
states, induced by an oxygen supply short of tissue
needs. There are two forms of asphyxia. In the first form
there is gasping for breath and marked cyanosis with
retention of carbon dioxide and depletion of oxygen. In
the second form there is no cyanosis, the asphyxia being
due to depletion of oxygen, or anoxaemia, without
retention of carbon dioxide. Shallow rapid breathing is
present which causes the anoxaemia and also an
excessive elimination of carbon dioxide, with resultant
failure of the respiratory centre. In this form there is no
sign of respiratory distress.

Asphyxia may be produced in many ways, including the
following:-

Occlusion of the air-passages by foreign bodies, the
effects of scalding or corrosives, angioneurotic oedema,
acute inflammation, membranous exudations, acute
oedema of the glottis, laryngeal spasm, tumours, and
abscesses.

Impediment to respiratory function by pressure on the
chest wall, for example, by falls of debris, and in lift and
pit-cage accidents.

Strangulation, suffocation, hanging, throttling, drowning,
and the inhalation of irrespirable gases.

Paralysis of the respiratory nerves or muscles, or of the
respiratory centre from injury or disease, or from the
action of certain poisons, for example, morphine and
barbiturates.

From causes operating from the lungs, or pulmonary
circulatory system, for example, lung diseases, pleural
effusions, pneumothorax, and pulmonary embolism.

26.2 What is suffocation?

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The term suffocation embraces the causes by which
death is produced by impediment to respiration, not due
to pressure externally and immediately applied to the
windpipe. It does not, therefore, include deaths by
hanging, strangulation, or throttling, but comprises
deaths by smothering or overlaying, those due to foreign
bodies in the larynx, trachea, and bronchi, and those due
to irrespirable gases. Suffocation may, therefore, result
from natural disease, accident, or violence suicidally or
homicidally applied.

Death by suffocation may be caused:-

By prevention of the action of the muscles of respiration.
By obstruction to the entrance of air through the mouth
and nostrils.

By obstruction of the larynx, trachea, or bronchi.
By inhalation of irrespirable gases.

26.3 What is hanging?

Hanging may be defined as that form of death which is
caused by suspension of the body by a ligature which
encircles the neck, the constricting force being the
weight of the body. A frequent method is the use of a
running noose. The proximate cause of death is asphyxia
or comato-asphyxia.

The time occupied in the process of death depends
chiefly upon two factors, the severity of the constricting
force and the point of application of that force.

The amount of the constricting force depends upon
whether or not the body is completely suspended.
Complete suspension is not essential since the partial
weight of the body is adequate for the purpose. Persons
have succeeded in hanging themselves although their
feet were in contact with the floor. Only a slight degree of
constriction of the neck is required to cause eventual
death. When, however, the entire body is suspended,
greater weight is thrown upon the ligature and a greater
constricting force results. When such a degree of force is
applied to the neck, death supervenes more rapidly than
in the case of partial suspension with a diminished
degree of constrictive force. When the ligature is not

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tight, death may ensure slowly, chiefly from the effects of
coma induced by disturbance of the cerebral circulation
as the result of pressure on the vessels in the neck. The
point of application of the force is an important factor not
only in the time occupied in dying, but in the subsequent
postmortem appearances.

26.4 What is strangulation?

Strangulation may be defined as that form of death which
is caused by a constricting force applied around the neck
by means of a ligature without suspension of the body.
Throttling, or manual strangulation, is that form of death
which is caused by compression of the throat, the
constricting force being the fingers and the hand or
hands of the assailant. Ordinary strangulation may be
caused accidentally, suicidally, or homicidally. The
constricting mark is usually found at a lower level on the
neck than in hanging, but may be found at any level, and
frequently direct pressure is exerted upon the larynx. The
mark more or less completely encircles the neck
transversely. In some cases it may be continuous, but in
others it may be invisible at some part of the neck. The
nature of the ligature employed plays a prominent part in
this respect. The degree and character of injury to the
deeper tissues of the neck are dependent on the amount
of violence used in the application of the ligature. The
underlying muscles frequently show some degree of
extravasation, due to rupture of the capillary vessels. The
laryngeal cartilages and trachea are usually intact, but in
some cases, especially homicidal cases, fractures of
these structures are present. Fracture of the hyoid bone
is unusual. The injuries in homicidal strangulation are
usually more extensive than in accidental or suicidal
cases, due to the fact that an assailant frequently uses
more force than is necessary to cause the death of his
victim. It is in such cases that extensive deep-seated
injury is likely to be found. When a ligature is suddenly
placed around the neck of a person and pulled tightly,
the assaulted person is rendered unconscious very
quickly and is unable to offer much resistance. [See
Medical Jurisprudence & Toxicology by Glaister XI
Edition)"

28. Before we proceed further, it would be relevant to
quote below the expert opinion on suicidal death and

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homicidal death:-

28.1 Noted author Dr. C. K. Parikh in "Parikh's Textbook
of Medical Jurisprudence, Forensic Medicine and
Toxicology" Sixth Edition in this respect offered expert
opinion as under:

"Suicide, homicide, or accident : Suicidal strangulation is
not common although instances have been known. To
effect suicide by ligature requires the employment of
some means (e.g., a tourniquet) whereby the ligature is
kept tight independently of any muscular effort on the
part of the suicide. In suicide, the ligature should be
found in situ and the body should be free from other
signs of violence or marks of struggle. The knot is usually
in front.

Homicidal strangulation is a common form of murder. In
fact, strangulating should be assumed to be homicidal
until the contrary is proven to be more likely under the
circumstances. A suspicion of homicide should arise
when (a) knot is tied on the back of neck, (b) mouth is
gagged, (c) limbs are tied, (d) other injuries are found on
the body, (e) signs of struggle are present, and (f) in case
of female, if she is sexually assaulted; and in such a case,
material that is readily available at hand, e.g., a nylon
stocking, pantyhose, or the scarf of the victim, is used as
a ligature. Tearing of clothes may be seen."

28.2 Likewise H.W.V.Cox in his book "Medical
Jurisprudence and Toxicology" offered expert opinion as
under :

"(d) Strangulation - Strangulation by a ligature is quite
possible in a suicidal manner, the suicider being able to
wrap several turns of rope or wire around his neck and
tie a complicated knot before unconsciousness occurs.

Sometimes a "Spanish windlass" devise is used in which
a loose ligature is tightened up by inserting a stick under
the ligature and twisting until it becomes tight. This is
quite possible in suicide but of course could also be a
homicide. Manual strangulation is virtually impossible as
a suicide act, though one or two cases have been
described. The mechanism must of necessity be the
sudden cardiac arrest type of death due to pressure on

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the carotid arteries, as it is obviously impossible to
maintain pressure long enough to cause florid asphyxial
changes with petechial cerebral anoxia would cause the
hands to fall limply from the neck, with the return of
consciousness to the intended suicide."

28.3 Dr. Modi in "Medical Jurisprudence and Toxicology"

Twenty-third edition offered expert opinion in this regard
as under :

"(ii) Whether the Strangulation was Suicidal, Homicidal or
Accidental. Suicidal strangulation is not very common,
though sometimes cases are met with. In these cases,
some contrivance is always made to keep the ligature
tight after insensibility supervenes. This is done by
twisting a cord several times round the neck and then
tying a knot, which is usually single and in front or at the
side or back of the neck, by twisting a cord tightly by
means of a stick, stone or some other solid material, or
by tightening the ends of a cord by tying them to the
hands or feet or to a peg in a wall or to the leg of bed. In
such cases, injuries to the deep structures of the neck
and marks of violence on other parts of the body are, as
a rule, absent. It is not possible for anyone to continue a
firm grasp of the throat after unconsciousness
supervenes, hence throttling by the fingers cannot
possibly be suicidal. Binnar records the case of a woman,
aged 40 years, who committed suicide by throttling. She
was suffering from melancholia and was found dead,
crouched in her bed with both hands compressing her
throat; the elbows were supported on the knees, and the
back leaned against the wall; there were marks of her
fingernails on both sides of the throat."

28.4 Taylor's Principles and Practice of Medical
Jurisprudence, Thirteenth Edition, 1984 by Keith Mant,
Vol. 1 stated at p. 282 that:

"asphyxia being a condition in which there is an
inadequate supply of oxygen to the tissues. It may be
defined as a state in which the body lacks oxygen
because of some mechanical interference with the
process of breathing. At p. 283 it was further stated that
cyanosis indicates the blue colour of the skin, mucous
membranes and of internal organs, notably spleen, liver
and kidneys. The capillary dilation that accompanies a

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reduction in oxygen tension promotes stasis and
therefore a vicious cycle of suboxygenation of the blood
commences. The return of blood to the heart is
diminished. The resultant impaired oxygenation leads to
further capillary dilation, further stasis, with deepening
cyanosis ...... Probably results from a combination of
stasis and hypoxia. Fluid exudes into the tissue spaces.

At p. 286 it was also stated of the distinction between
suffocation and strangulation that conditions associated
with mechanical asphyxia include suffocation where the
interference with the process of breathing is at the level
of the nose or mouth; strangulation where there is
compression of the neck, either by (a) the human hand
(manual strangulation or throttling); (b) a ligature. In
paragraph 6 he stated that in each of these categories
the obstructive process at the various level will result in
the development of the symptoms and the signs
associated with asphyxia previously described. At p. 287
of general features of asphyxia, it was stated that the
head and face may show intense congestion and
cyanosis with numerous petechiae. Blood exudes from
the mouth and nose. Blood tinged frothy fluid is present
in air passages. Mucus may be found at the back of the
mouth and throat. The lungs which are of particular
interest, usually show in addition to congestion of inter-
alveolar capillaries, the presence of the oedema fluid in
the alveoli, areas of haemorrhage and collapse with
intervening emphysema.......

Regarding post-mortem appearances in strangulation at
p. 305 it was stated that a careful search in suitable
mortuary conditions will usually reveal either external or
internal evidence of the area where the construction has
occurred. At p. 306 the General Internal appearances, it
is stated that internally the air passages contain fine
froth, often blood stained. The lungs are congested with
subpleural petechiae. Mycroscopically there is usually
intense inter-alveolar congestion with haemorrhages of
varying size, fluid in the alveoli, areas of collapse and
intervening areas of ruptured alveoli. The air passages
often contain large areas of desquamated respiratory
type epithelium, red blood cells and fluid. The remaining
organs show only congestive changes.

These conditions vary because of the circumstances that

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the assailants usually employ considerably more force
than would appear to be necessary to ensure that death
takes place. In general terms the mark of the neck is
usually of the same width as the constricting object and
the depth is about half its diameter. Regarding finger-nail
marks it was stated that in manual strangulation the
marks of bruising will be on the front or sides of the neck,
chiefly about the larynx and about it. Marks of pressure
of fingers may, however be slight. The distribution of
these marks when present will vary with the
circumstances, and factors which will affect it include the
relative position of the assailant and victim, the manner
of gripping the neck, being greater if the grip is shifted or
has been reapplied if the victim struggles, and the
degree of pressure. The solid tissues of the neck are of
extreme importance in cases of suspected strangulation.
The solid structures comprise the hyoid bone and the
cartilages forming the larynx. If the body is found to have
died with marks on the neck which indicate manual
strangulation and this is subsequently confirmed in the
mortuary and laboratory the case must be regarded as a
killing by another person. It is inconceivable that anyone
could die from compression of the neck by his own hand
because loss of consciousness would cause relaxation of
the constricting fingers.

28.5 In Gradwohl's Legal Medicine, Second Edition in
Chapter 18 under the caption interpretation of Post-
Mortem Appearances in Death from Respiratory
Obstruction and Compression of the Neck, at p. 336 it
was stated that:

"Systemic and pulmonary congestion and dilatation of
the heart are classically described as signs of an
asphyxial death. At p. 337 regarding hyoid bone it was
stated that two mechanisms have been suggested in
which the hyoid bone may be fractured: from direct
lateral compression and from indirect violence. Direct
lateral compression is one mechanism in manual
strangulation, when pressure is applied under the angles
of the jaw."

28.6 Medical jurisprudence by Raju and Jhala in Chapter
XXV death from asphyxia and death from drowning at p.
226 stated that:

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"the heart in asphyxia, specifically right chambers, is
always found full of dark venous blood. This is important
to note as usually with death, blood disappears from the
heart. The venous system of circulation, because of back
pressure, is always found distended with blood. The
blood in heart and veins is not only dark blue but also
liquid and remains liquid....... The internal organs and
mucous membrane also present the general signs of
congestion...... This congestion has to be looked for and
has to be found in all cases of genuine asphyxia."

28.7 In Medical jurisprudence and Toxicology, 13th Edn.
by Modi at p. 155 it was stated that:

"in the case of constriction occurring at the end of
expiration the lungs are congested, oedematous and
exude bloody serum on being cut, but are pale if
constriction occurred at the end of inspiration.... The
right side of the heart, the pulmonary artery and venae
and cavae are full of dark fluid blood, and the left side is
empty. The abdominal organs are usually congested. The
brain is usually normal, it may be pale or congested
according to the mode of death. For symptoms at p. 158
it was pointed out that if the wind pipe is compressed so
suddenly as to occlude the passage of air altogether, the
individual is rendered powerless to call for assistance,
becomes insensible and dies instantly. If the windpipe is
not completely closed, the face becomes cyanosed,
bleeding occurs from the mouth, nostrils and ears, the
hands are clenched and convulsions precede death. As in
hanging, insensibility is very rapid, and death is quite
painless. Regarding appearances on the neck he stated
at p. 159 that if the fingers are used (throttling) marks of
pressure by the thumb and fingers are usually found on
either side of the windpipe..... At p. 161, appearances
due to asphyxia it was stated that the face is swollen and
cyanosed, and marked with petechiae. The eyes are
prominent and open. In some cases they may be closed.
The conjunctive are congested, and the pupils are
dilated. The lips are blue. Bloody foam escapes from the
mouth and nostrils, and sometimes pure blood issues
from the mouth, nose and ears, especially if great
violence has been used. Regarding internal appearances
he stated that the cornua of the hyoid bone may be
fractured, also the cornua of thyroid cartilage but
fracture of the cervical vertebrae is extremely rare. The

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liver may show cloudy swelling and necrosis of the cells,
if death has been delayed. The kidneys may show signs
of nephritis, and on section the straight tubules may be
filled with debris of the blood corpuscles giving the
appearances of reddishbrown markings."

28.8 In H.W.V. Coxs Medical Jurisprudence and Toxicology
by Dr. Bernard Knight, 5th Edn. in Chapter 1 at p. 207 it
was stated that:

" strangulation is again a term which is not exact in itself,
as there are several types of strangulation, mainly
manual strangulation and strangulation by a ligature.
Though both these are similar, there are certain
differences which are reflected in the pathological
findings. Strangulation is not by any means the same
thing as asphyxia; in fact, a better name would be
'pressure on the neck', which is used as an alternative
description by some pathologists. Regarding manual
strangulation and the length of the time required to
cause death at p. 213 it is stated that the length of time
for which pressure on the neck must be maintained to
cause death is very variable, from zero seconds to
several minutes. The statement regarding length of time
he stated that no dogmatic statement of time of two
minutes or three minutes can be made. It is of little
practical value as unless a witness is present, there is
never any way of determining such times. If, however,
there is physical evidence of pressure on the neck from
bruises and haemorrhage, but no congestion whatsoever,
then it is certain that death was relatively rapid before
these classical signs appeared, due to reflex cardiac
arrest. Where death is due to cerebral anoxia from
compression of carotid vessels, then there is usually
cyanosis and congestion due to simultaneous blockage of
the jugular venous system, though ignorance of time
factors make this statement of little practical value. In
Taylor's Medical jurisprudence it was stated at p. 282
that the amount of pulmonary oedema can be used to
estimate the time interval between injury and death. In
practice it is seldom of value as it is common experience
that the changes described can develop with great
rapidity when a patient dies after choking. At p. 285,
asphyxia by violence, it is stated that if the breathing is
interfered with for a sufficient period of time
unconsciousness and death will supervene."

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21. Let me now straightway go to the postmortem report. In
column No.17, the following injuries or features were noted;

17. Injury and wound o n "(1) 11cm X 0.5 cm transverse
t h e e x t e r n a l p o r t i o n o f reddish blue contusion extending
from right lateral part of neck
t h e b o d y , i t s t y p e , upto posterior part of neck on
position, right side with small abrasion
measurement, a n d measuring 0.2 cm 1 to 2 in
number around contusion
direction shall b e anteriorly on neck.

mentioned
(2) 9 cm. X 0.5 cm transverse
specifically, a ls o it
reddish blue contusion extending
s ha l l be m e n t i o n e d from left side of neck towards
t h a t , t h e i n j u r y a n d left ear lobule.
wound shall be of
(3) Light bluish diffuse

w h a t t i m e a n d r e a s o n s contusion on anterior part of
thereof.: neck present."

If any part of the body is
found to be decayed
o r t ha n s ta t e w h a t w a s
the position of the
flesh underneath the
skin
( NOTE: In case
where there are
several injuries and it
is not possible to
mentioned the same
on the space provided
for the same than the
same s ha l l be
m e n t i o n e d o n s e pa r a t e
sheet and signature
s h a l l b e p l a c e d i n t ha t
pa p e r s he e t )

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22. In column Nos.19, 20 and 21, so far as the internal
examination is concerned, the following was noted in the
postmortem note;

3. Internal Investigation.

19. Head :-

(1) Injuries beneath skin and
their types: ------

(2) Upper & lower portion of
skull, fracture, portion of body
------
where fracture has occurred,
position etc shall be mentioned.

3) Brain: Its internal
a p p e a r a n c e , s i z e , w e i g h t a n d t h e Brain and Meninges
Congested with petechial

n o r m a l c o n d i t i o n s o f t h e s a i d hemorrhages.

organ and on investigation if
any abnormality is found out
that it shall be noted carefully.
(weight of brain of a male : 3
pound and that of weight of a
brain of female : 2.75 pound)

20. Chest Formation:-

(a) wall, ribs, soft t is s u e s , Congested with petechial
bones: hemorrhages.

( b ) L u n g pa r t i t i o n ( P l e u r a ) : Congested.

(c) Voice box, air pipe florm: subcutaneous tissue under
ligature mark contused,
torn at few places.
(d)Right lung: Trachea:-Congested with
fracture of tracheal
(e) Left Lung : cartilage with petechial
hemorrhages.Larynx
congested with petechial
hemorrhages.

Congested with subpleural

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hemorrhages present
(f)Heart cover (pericardium): Congested

(g)Heart (along with its weight): Congested

(h) Big blood veins: Congested

(I) Special Note: -

21. Stomach:-

Wall : Congested

Covering (peritoneum ) of Congested
internal skin of stomach:

C a v i t y , s t o m a c h , a n us : Filled with distended
viscera

C a v i t y , t e e t h , t o n g u e a n d v o i c e Mouth Closed
pipe : Teeth inside mouth
Tongue: inside mouth
Food pipe (Oesophagus): Congested

Stomach & t h i n g s f o u n d i n s i d e Congested-Whole stomach
from it : with its contents sent for
FSL (some whitish liquid
present at cut section
Small intestine & t h i n g s f o u n d Congested-Pieces of small
out from it: and large intestine send
for FSL
Large intestine & things found
out from it.:

Liver-weight and Pancreas : Congested

Stomach and Suprarennels : Congested

Spleen (with weight) : Congested

Kidneys (along with weight):

Urine Bag (bladders) : Congested

Genital organs : Uterus-bulky-whole uterus
with its appendages sent
for histopathology
reporting.
Position of the particles found Viscera taken
out from the stomach at the

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time of death and if possible
opinion of medical office
relating to last food of the
deceased along with special
note.

W h i c h i n t e r n a l p a r t s h a v e b e e n (1)Box contains-(A) whole
k e p t f o r c h e m i c a l e x a m i n a t i o n stomach with contents and
part of small and large
a n d s ta t e n u m b e r s o f b o t t l e s intestine.

a n d s e r i a l n u m b e r w h e r e i n t h e (B) some part of lung,
same are kept. : liver, spleen, kidney, brain
(2)Box Contains-(c ) pieces
of liver, spleen, brain,
kidney with uterus and
appendages.

(d) whole heart, lung
(3)Blood Sample.

23. The final cause of death assigned is as under;

"After histopathology report No.769/17 dated 27.11.2017
and FSL report dated FSL/TPN/89/T/1824 dated
18.12.2017, no poison detected and histopathology
normal. So final cause of death is cardiorespiratory
arrest due to mechanical asphyxia following
strangulation."

24. Ms. Thakkar, the learned APP also made available, for my
perusal, few photographs of the deceased clicked by the police
at the time of drawing of the inquest Panchnama. I am not an
expert in the field of forensic science or medicine, but a bare
look at the photographs of the deceased and the position of
the ligature mark would indicate, prima facie, that the case is
one of suicidal hanging. The ligature mark was present on the
front portion of the neck and it had gone to the back portion of
the ears on both the sides. There were abrasions on the
margins of the ligature mark.

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25. Strangulation is defined as the compression of the neck
by a force other than hanging. The weight of the body has
nothing to do with strangulation. The ligature strangulation is a
violent form of death, which results from constricting the neck
by means of a ligature or by any other means without
suspending the body. When constriction is produced by the
pressure of the finger and palms upon the throat, it is called as
throttling. When strangulation is brought about by
compressing the throat with a foot, knee, bent elbow or some
other solid substance, it is known as mugging (strangle hold).
Hanging is a form of death, produced by suspending the body
with a ligature around the neck, the constricting force being
the weight of the body or a part of the body weight. Hanging
can be defined as the ligature compression of the neck by the
weight of one's own body due to suspension. In hanging, the
ligature mark is usually situated above the thyroid cartilage
between the larynx and the chin, and is directed obliquely
upward following the line of the mandible (lower jaw) and
interrupted at the back or may show an irregular impression of
a knot, reaching the mastoid processes behind the ears
towards the point of suspension. The mark may be found on or
below the thyroid cartilage, especially in case of partial
suspension. It may also be circular if a ligature is first placed at
the nape of the neck and then its two ends are brought
horizontally forward and crossed, and carried upwards to the
point of suspension from behind the angle of the lower jaw on
each side. The mark will be circular and oblique if a ligature is
passed round the neck more than once. Near the position of
the knot, it is like an inverted "V" (see Modi's Medical
Jurisprudence and Taxicology 23rd Edition, pp.565, 568, 571

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and 583). I must note that the most important difference
between the hanging and strangulation by ligature is that in
hanging the ligature mark is oblique, non-continuous placed
high up in the neck between the chin and the larynx, the base
of the groove or furrow being hard, yellow and parchment like,
whereas in strangulation by ligature, the ligature mark is
usually horizontal or transverse continuous, round the neck,
low down in the neck below the thyroid, the base of the groove
or furrow being soft and reddish.

26. The theory as put forward by the prosecution that the
deceased was first strangulated to death and then hanged by
the accused persons from a ceiling fan with the aid of a
Dupatta just to make a show that the deceased committed
suicide, should be outright rejected. This does not even
appear to be the case of the Investigating Agency. It is in the
course of the submissions of the learned APP as well as the
learned counsel appearing for the original first informant that
such theory has been put forward. There is a reason why this
theory, put forward, is absurd. If this theory has to be
accepted, then there should have been two ligature marks on
the neck of the deceased. The photographs which are
attached with the original papers of the investigation,
completely rules out this theory because there is only one
ligature mark in the shape "V". There is no reference of two
ligature marks on the neck even in the postmortem report.
Besides the same, the ligature mark which can be seen from
the photographs is not one completely encircling the neck and
most importantly, the ligature mark would be at a lower level if
the case is one of homicidal death. The ligature is almost over
the sub-mandibular region which is below the chin. This is very

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apparent on bare look at the photographs. There are no signs
of any scuffle worth the name. This also rules out the theory of
homicidal death. Once again, at the cost of repetition, I state
that the ligature mark is "V" shaped incomplete-oblique.

27. There is one another pertinent feature which needs to be
noted from the photographs of the deceased. One eye is open
and the another is closed. This is called Le Facie Sympathique.
This suggests hanging. Cyanosis is also not so evident. This
also points towards hanging. The postmortem report is
absolutely silent so far as Emphysematous bullae on the
surface of the lungs is concerned. The Emphysematous bullae
on the surface of the lungs was not found to be present. This is
suggestive of suicide by hanging.

28. In any view of the matter, there is a considerable doubt
as regards the fact whether the case is of homicidal
strangulation or suicidal strangulation. Strangulation, by itself,
does not mean that the case is one of homicidal death. In the
medical jurisprudence, there is something called suicidal
strangulation. It is, altogether, different to say that the
strangulation should be assumed to be homicidal until the
contrary is proven to be more likely under the circumstances.
Strangulation by a ligature is possible in a suicidal manner.

29. I am inclined to give more weightage to the theory of
suicide not only keeping in mind the postmortem report and
the photographs but also considering the two statements of
the neighbours referred to above. The statement of Manibhai
Madhavlal Maheriya and his son Ravikumar Manibhai Maheriya
further reinforces the fact that the deceased committed

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suicide by hanging. Both these witnesses, in clear terms, have
stated in their statements that on hearing the shouts, they
reached at the house of the deceased and noticed that the
deceased had hanged herself with the aid of a Dupatta from a
ceiling fan. These two witnesses have stated that the other
persons residing in the neighbourhood came at the house of
the deceased and cut the Duppata with a scissor and brought
the dead body of the deceased down.

30. The learned APP as well as the learned counsel appearing
for the first informant vehemently submitted that at the stage
of bail, the court should not give any benefit of doubt to the
accused even if such doubt arises having regard to the
materials on record. To put it in other words, the submission
on behalf of the State as well as the first informant is that this
Court should blindfoldedly accept the postmortem report at
this stage as a gospel truth and believe the case to be one of
homicidal death by strangulation. I do not find any merit in
such a submission. First, the postmortem report itself is not
clear and does not indicate only towards the theory of
homicidal death by strangulation. Ultimately, in the course of
the trial, the prosecution will be examining the expert
witnesses in this regard and the Trial Court will get the benefit
of the opinion of the expert witnesses. However, that does not
mean that at the stage of bail, the accused is not entitled to
the benefit of a strong reasonable doubt with regard to the
nature of the death. The stage when the accused is asking for
a bail is also a stage where the principal of presumption of
innocence operates and if there is a reasonable doubt in the
mind of the judge having regard to the materials on record,
then the benefit of such doubt should go to the accused even

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at the stage of bail. There is no reason for me, at this stage, to
disbelieve the two statements of the independents witnesses,
referred to above. It is not even the case of the prosecution
that the two witnesses are partisan or were won over by the
accused persons in any manner.

31. In view of the above, I am inclined to exercise my
discretion in favour of the applicants.

32. In the result, the present application is allowed by
directing that in the event of arrest of the applicants herein in
connection with the FIR registered at the Nadiad West Police
Station vide I-CR No.48 of 2017, the applicants shall be
released on bail on each of them furnishing a personal bond of
Rs.50,000/- (Rupees Fifty thousand only) with one surety each
of the like amount on the following conditions that they shall:

(a) remain present at the concerned Police Station on
21st March, 2018 between 11.00 a.m. and 2.00 p.m.;

(b) not directly or indirectly make any inducement,
threat or promise to any person acquainted with the
facts of the case so as to dissuade him/them from
disclosing such facts to the court or to any police
officer;

(c) at the time of execution of bond, furnish the
address to the Investigating Officer and the Court
concerned and shall not change their residence till the
final disposal of the case till further orders;

(d) not leave India without the permission of the Court,
and if having passport, shall deposit the same before
the trial Court within a week;

33. It goes without saying that any observations touching the
merits of the case are purely for the purpose of deciding the

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R/CR.MA/4178/2018 JUDGMENT

question of grant of bail and shall not be construed as an
expression of the final opinion in the main matter.

34. It is brought to my notice that the case is yet to be
committed to the Court of Sessions. The court concerned is
directed to take steps at the earliest to commit the case to the
Court of Sessions. Once the case is committed to the Court of
Sessions, then the Sessions Court shall proceed to frame the
charge at the earliest and start with the recording of the
evidence on day to day basis. The Registry is directed to
forward a copy of this judgement to the Court, in which, the
committal proceedings are pending so that necessary steps
can be taken in accordance with law. Rule is made absolute to
the aforesaid extent.

Direct service is permitted.

(J.B.PARDIWALA, J)

Vahid

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