Javed Abdul Razzaq Shaikh vs The State Of Maharashtra

JAVED ABDUL RAJJAQ SHAIKH ... APPELLANT

VERSUS

STATE OF MAHARASHTRA ... RESPONDENT

J U D G M E N T

K.M. JOSEPH, J.

1. The appellant, calls in question, his conviction under

Section 302 of the Indian Penal Code, 1860 (hereinafter

referred to as ‘the IPC’, for short) by the High Court.

Originally, the appellant was accused no.1 before the Trial

Court. Accused nos. 2 to 4 were his parents and his brother.

They were altogether charged with offence under Section 302

read with Section 34 of the IPC. This is besides being Signature Not Verified

charged under Section 498A of the IPC. The Trial Court Digitally signed by ANITA MALHOTRA Date: 2019.11.06 17:42:10 IST Reason: 1 convicted all the accused for offences under Section 302

read with Section 34 and Section 498A of the IPC. On appeal

filed by the appellant and the other accused, accused nos.

2 to 4 stand acquitted of all the offences. The appellant

has also been acquitted of the offence under Section 498A

of the IPC. However, the High Court, by the impugned order,

had convicted him for the offence under Section 302 of the

IPC instead of Section 302 read with Section 34 of the IPC.

This is besides a fine.

2. The prosecution case, in short, is that the appellant

and the other accused committed murder of the wife of the

appellant. As already noticed, the charge was of committing

murder under Section 302 read with Section 34 of the IPC.

3. The father of the appellant lodged a complaint wherein

it was inter alia alleged that the marriage of the appellant

and his deceased wife took place prior to two years as per

custom. Half tola gold remained to be provided. Due to

poverty, he could not provide half tola gold. The accused

2 maintained the deceased properly for the period of first

eight months. Three months prior to the incident, the

deceased disclosed to the complainant and his wife that all

the accused were maltreating the deceased by insisting her

to bring half tola gold, dress and Rs. 5,000/- for business

of bakery. They insisted her to bring this from her parents

and assaulted her. They did not provide food to her and

maltreated her. She was threatened with murder if the demand

was not fulfilled. So, deceased decided to stay with her

father for two months. Within two months, nobody from the

accused came to receive her. The deceased disclosed about

the maltreatment to his sister. His sister convinced the

deceased and brought her to the house of the accused. Eight

days prior to the incident, his sister informed him that

accused Javed visited her house and demanded half tola gold,

dress and the amount. On 10.03.2005, he received

information by phone that deceased was serious and admitted

to a hospital at Naldurg. The complaint activised the

Police. Investigation was done. Charge-sheet was filed.

Charges were framed, as already mentioned. Rejecting the

3 contentions of the appellant and other accused, the Trial

Court convicted them. It was found that the deceased had

been throttled. The evidence of the Doctor, supported the

case of murder. The claim that it was a suicide by the

deceased, was rejected.

4. The High Court, however, found only the appellant

guilty under Section 302 of the IPC.

5. We have heard Shri D. N. Goburdhan, learned counsel for

the appellant who appeared before us and also learned

counsel for the State.

6. Counsel for the appellant would submit that the case

of the prosecution was one of commission of offence under

Section 302 read with Section 34 of the IPC. It was the case

of the prosecution that all the accused together committed

the act of murder. He would complain that in appeal, when

the High Court found it fit to acquit accused nos.2 to 4,

the accused cannot thereafter be convicted. He drew our

attention to the judgment of this Court in Sawal Das v. State

4 of Bihar 1 and Sukhram s/o Ramratan v. State of Madhya

Pradesh2.

7. He would submit that when the prosecution failed to

establish the guilt of accused nos.2 to 4, in the

circumstances of this case, it must be taken that

prosecution has also failed to establish the case against

the appellant as it would be the case under Section 302

simpliciter. He would submit that it was a case where the

deceased had taken her own life. Appellant and her brother

had married around the same time. Two years into the

marriage, the appellant and his late wife/deceased were not

blessed with a child. On the other hand, a child was born

to his brother. This caused frustration, and finally, led

the deceased to take the extreme step.

8. Next, he would contend that the incident took place and

the post-mortem was conducted allegedly on 10.03.2005.

However, the report is prepared allegedly only on

25.08.2005. Learned counsel posed the question as to the

1 (1974) 4 SCC 193 2 1989 Suppl.(1) SCC 214

5 possibility that the post-mortem report, in fact, may be

related to somebody else. In this regard, he drew our

attention to the deposition of the father of the deceased.

Father of the deceased had deposed that it was true that

the marriage of the appellant and the deceased was performed

happily and there was no quarrel between the spouses. He

had also deposed that the custom of jumaki was followed.

That some jumaki was performed in the house of the appellant

and some jumaki was performed in his house. Further, he has

stated as follows:

“It is true that there are four rooms in the house of accused. It is true that accused Nos.1 and 4 were using separate bed room in the house. It is true that within six months from the marriage, when ever Sultana visited to my house, she told me that I had performed her marriage in proper house and she is happy in the house of accused. It is true that my daughter was co-operative and helpful natured girl.”

“It is true that when Sultana came to my house for Ramzan’ festival, that time, Sultana told me that I should take her in the house of accused and there is no entertainment in my house.”

6

9. He would further point out that reversing the verdict

of the Trial Court, the High Court has acquitted the

appellant as also the other accused of the charge under

Section 498A of the IPC. This means that the appellant was

not found guilty of cruelty under the said provision. It

was, therefore, wholly illogical and not warranted by the

evidence to convict the appellant under Section 302 of the

IPC. The inconsistency between the inquest report and the

post-mortem report was highlighted and it was submitted

that it has not received due consideration. He would submit

that the external injuries which were noted in the inquest

panchanama in respect of swelling of the head, ligature mark

of rope to neck, injuries to thigh and back are not noted

by the Doctor in the post-mortem report. He complains that

the Trial Court has got over this by merely finding that

in a case of difference of injuries between the inquest

panchnama and the post-mortem report, the post-mortem

report will prevail over the inquest panchnama. He reminds

that the post-mortem report has been prepared after more

than five months from the date on which the post-mortem was

7 allegedly performed. He would submit that when doubts were

established, the appellant should have been the beneficiary

of doubts. He would further submit that if an adult person

is throttled, there would be resistance and the resistance

would be manifested. There is no evidence of any such

resistance. All this points to the deceased having

committed suicide. He further points out that as noted by

the Court itself, it was the appellant who took the deceased

to the hospital. Had the appellant been the culprit, he

would have destroyed the body and certainly not taken the

person to the hospital.

10. Per contra, the learned counsel for the State supported the judgment passed by the High Court. He would point out

that as regards the discrepancy in the date of preparation

of the post-mortem report, questions have been put in the

examination of P.W.1 doctor and answers elicited. There was

a valid explanation which was the non-availability of one

of the doctors. He further pointed out that the provisional

8 report was given on the date of the post-mortem, i.e., on

10.03.2005.

THE FINDINGS OF THE TRIAL COURT

11. The trial court has accepted that the following circumstances stood proved against the appellant and other

accused:

(1) Motive;

(2) Custodial death of the deceased; (3) Non-disclosure of death by the appellant to the complainant(father of the deceased); (4) False evidence of accused of hanging; (5) Inquest panchnama;

(6) Spot panchnama.

12. As regards motive, the trial court relied on the evidence of PW 3 that all the accused were insisting on the

deceased to bring half tola gold which remained to be

provided by the time of marriage besides one choice dress

and Rs.5000/- for Bakery business. The appellant

reiterated his demand and repeated his threat to kill

9 deceased if the demands were not met after eight days of

her return to his house. The trial court also placed

reliance on PW 4, the aunt of the deceased in this regard.

It is after the threat mentioned above that the deceased

died after 8 to 10 days. It is found that medical evidence

showed that the death is caused by throttling. All the

accused by their joint act -one by pressing her neck, one

by catching hold of her hand, another by catching hold of

her leg and one by pressing her leg killed her. There is

medical evidence to prove violence by killing her by

throttling by pressing her neck. As the demands made by

the accused were not fulfilled, in furtherance of common

intention, the appellant’s wife was killed. All the

accused were residing in the same house. They participated

in the crime and brought the body before the doctor saying

she hanged herself. Therefore, motive to kill is clearly

established. There is no evidence to prove that PW-4 was

at the house.

10

13. Exhibit 24 is enlisted to show that the appellant brought the dead body before the doctor. Evidence of the

complainant (PW-3) and PW-4 is referred to show that the

deceased was residing with all the accused in the house.

When it is noticed that death took place due to throttling,

then the accused must prove as to how she died. While

explaining in the statement under Section 313 of Cr.P.C.,

none of the accused explained about the death of the

deceased. The point as to custodial death was found

established.

14. As regards non-disclosure of death by the accused to the complainant, it is found that PW-3 complainant has

deposed that about 8.00 A.M. on the date of the incident,

he came to know from Isaq, son of PW-4 by telephone from

Solapur. The accused had not disclosed about the death to

the complainant. PW-4 has not deposed that she was

intimated. The accused seemed to have kept mum after the

death and has not reported to complainant and other

relatives. Also, the Court goes on to find that a false

11 statement was made regarding the death of the deceased by

hanging which is contrary to the medical evidence.

15. In regard to the inquest panchnama, it is stated that it shows external injury like rope mark at neck, swelling

to head, injury to thigh and back as well as two teeth from

the front side are broken and blood was oozing from the jaw.

It is the case of the accused that the injuries noted on

the thigh, back and swelling to head and ligature mark of

rope to neck is not noted in the post-mortem in Exhibit 22.

Therefore, there is a conflict between the inquest

panchnama and the post-mortem report. The trial Court goes

on to find that the external injuries noted in the inquest

panchnama as noted above, were not noted by the doctor in

the post-mortem which is official. It is concluded that when

there is difference of injuries in the inquest panchnama

and the post-mortem, post mortem will prevail over the

inquest panchnama because panchnama (witnesses) are not

experts like doctors. Accused cannot get benefit of

inconsistencies. Expert evidence based on scientific

12 method will prevail over knowledge of ignorant men in that

field. It was found that PW-1 was an eminent doctor and in

the last five years, he had done many post-mortems and he

was treated as an expert man. Thereafter, the trial Court

also relied upon the spot panchnama. The spot panchnama

was effected on the very day of incident i.e. on 10.3.2005.

One rope of nylon was seized. The spot of incident was one

of the rooms situated in the house of the accused. It is

having two-metre height wall. The height of the room is

5-feet 10-inches. The photograph of the deceased, the

panchnama and the photograph of the place of the incident

proved by PW-5 led the Court to hold that the height of the

room is such that it was not probable for any person having

normal height to hang in that room and normal height of the

man is 5 feet or more. The Court further proceeds to find

that the F.I.R. is late but goes on to hold that merely

because the F.I.R. is late, it does not mean that the case

is false. Having referred to the circumstances, the Court

also found that the complaint was filed by the complainant

late on the next day at the night hours but the explanation

13 of the complainant that due to death of his daughter, he

was unhappy was found acceptable. Regarding the contention

of the accused that it was a case of suicide as the deceased

had not delivered a child whereas the wife of the fourth

accused (sister-in-law) of the deceased had delivered a

child and therefore, she was frustrated was found

unacceptable. The deceased was only 20 years old. At the

age of 20 years, it could not be said that she cannot become

pregnant in future. It was found that it was nobody’s case

that the deceased was having some problem having a child.

There is no case of any medical treatment.

FINDINGS OF THE HIGH COURT

16. This is a case entirely based on circumstantial evidence. The deceased was living in her matrimonial home.

She was living with her husband. As regards the case under

Section 498A IPC is concerned, the High Court finds that

there is reason to infer that the deceased was leading a

happy married life. The following part of the cross

14 examination of the PW 3, father of the deceased is relied

upon:

“It is true that there are four rooms in the house of accused. It is true that accused Nos. 1 and 4 were using separate bed room in the house. It is true within six months from her marriage, whenever Sultana visited to my house, she told me that I had performed her marriage in proper house and she is happy in the house of husband. It is true that my daughter was co-operative and helpful natured girl.” “It is true that when Sultana came to my house for Ramzan’ festival, that time, Sultana told me that I should take her in the house of accused and there is no entertainment in my house.”

17. On the basis of the aforesaid, the High Court finds that the same speaks of a different story. The deceased expressed

her desire to return to the place of her husband (appellant)

at a point earlier than contemplated by her father. It is

found that there was ample admission on the part of the

father of the deceased and his sister that the parents did

not take any legal steps such as lodging complaint with the

police station nor did they call elderly and respectable

relatives for a meeting and inviting accused persons to

15 explain their conduct. The High Court found it difficult

to believe that there was a persistent demand from all the

four accused. In view of certain admissions, PW 4 aunt of

the deceased was found unreliable. The High Court found

that it was difficult to believe that all the four accused

were persistently demanding gold or amount and for

pressurising the deceased or that they were subjecting her

to ill treatment such as physical beating or starvation.

It is thereafter that the case of the appellant was found

to stand on a different footing. The deposition of PW 4

is noted, namely, “thereafter after 8 days Javed accused

came to my house at Solapur. He told me that his

father-in-law has not provided gold, cloth and money till

now and if it is not provided, he will kill sultana and thus

by giving the threat he went away.” The conveying of the

aforesaid message to him by his sister on telephone gave

assurance to the deposition of PW4. If at all, it was found

that there was pressure upon the deceased for complying with

the demands, it was from appellant alone. As regards the

circumstances relied upon by the trial Court in regard to

16 their motive, the High Court proceeds to find that the

motive is not proved as against accused 2 to 4 in as strong

manner as against the appellant. As far as the custodial

death is concerned, it was found from Exhibit 24 that the

deceased died sometime before 7.15 a.m. Post-mortem was

performed at 3.30 p.m.. Therefore, it can be ascertained

that the death ensued 12 hours earlier sometime about

3.30 a.m. Support from P.W.3 is drawn to conclude that the

two newly married couple were using separate bed room which

allowed the accused 2 to 4 to escape from the allegation

of custodial death against them at that time of the day and

only the couple is bound to be in the bed room. Therefore,

custodial death was proved only against the appellant.

Referring to the prosecutor’s argument based on the

injuries of the deceased that it was not the husband alone

but others as held, was not found the only possible

inference. Breaking of the front teeth was indicative of

some violence. The High Court proceeds to find that a

possibility cannot be ruled out that the victim was found

unguarded and last but not the least, the impression injury

17 on the thigh and ankle cannot be ruled out, even though the

sole assailant tried to pin down the victim by riding on

the person of the victim and putting pressure on the thighs

by his knees and on the ankles by his feet. It is found

that although admissions are obtained from the doctor that

such injuries are possible if the victim is gripped by

someone else such admission is to be read only to the extent

of medical opinion, that is, the injuries are possible, if

the pressure is put on the thighs or ankles gripped. It

was found an inference of involvement of more than one

accused on the basis of medical evidence, is a matter of

imagination and therefore somewhat risky. Lastly, the

statement of the appellant when he had admitted the deceased

to the hospital that he had brought up the deceased for

treatment that she had hanged herself in an attempt to

commit suicide, was used against the appellant as it was

found to be settled legal position that false information

by the deceased who is obliged to offer explanation for

death is a circumstance which strengthens the chain of

circumstantial evidence. It is accordingly that the

18 appeal was partly allowed. His conviction under Section

498-A IPC was set aside, so was his conviction under Section

302 read with Section 34 IPC and he stood convicted under

Section 302 IPC alone. The appeal filed by the other three

accused was allowed.

THE POST MORTEM REPORT

18. The injuries noted in paragraph 17 of the Post Mortem report are as follows:

“Bruising and ecchymosis present on both sides on neck from center to laterally on both sides of neck about 7 cm x 1 cm.

1. Abrasion (crescentric) present on left side extending from center to lateral about 5 cm long.

2. Pale pressure mark present over both legs ante collaterally over ankle region about 7 cm x 1 cm.

3. Contusion of upper lip 3 cm x 2 cm.”

Under paragraph 20 which deals with injuries to the Thorax

region, the following injuries have been noted:

“A] Walls, ribs, cartilages/ a & b are noted as normal.

B] Pleura.

C] Larynx, trachea and bronchi

19

1. Subcutaneous tissue over both lateral aspect of both side swollen and subcutaneous haemorrhage present.

2. Both sternomastoid muscle crushed and severe haemorrhage present beneath it.

3. Thyroid cartilage crushed laterally on both sides more on left side.

4. Cricoid cartilage crushed on both sides.

5. Multiple small clots of blood seen around the laryangeal cartilages.

D] Right Lung-Both lung congested.

E] Left Lung – with petechiae and exuding dark blood on section.

G] Heart with weight – Left side contained little blood, Right side of the heart contained full of dark fluid blood.

Bucal cavity, teeth gongue: Upper left central incisor partly broken and right central incisor totally broken within bleeding from gums.”

Stomach contents were noted as empty.

OPINION AS TO THE CAUSE

19. It is stated that Dr. I.C. Kolle and Dr. A.I. Syed have done the post-mortem on 10.03.2005. Under the opinion as

to the probable cause of death, it is written Acute Cardio

20 respiratory arrest. Secondary to acute asphyxia secondary

to throttling. The report is signed dated 25.08.2005. In

the last page it is stated, forwarded to the police custody

and the date is shown as 10.03.2005.

DEPOSITION OF P.W.1 - THE DOCTOR WHO CARRIED OUT THE POST MORTEM

20. PW.1 is Dr. I.C. Kolle aged 32 years. He states that

he has carried out nearly 32 post-mortems during his service

period. On 10.03.2005 he received the dead body of the

deceased in this case from the police station. He started

doing post-mortem at about 3.30 p.m. and completed by about

4.45 p.m.. The inquest panchnama was given to him by the

concerned police station. He noticed eyes semi open,

tongue within mouth which has been noted at paragraph 13

of the post-mortem note. He noticed 4 injuries on the dead

body and those were noted as surface wounds and the injuries

are at paragraph No.17 of the post-mortem note. He further

deposed that these are surface injuries and ante-mortem

injuries. These injuries occurred due to throttling by

21 pressing neck by fingers and palm. Thereafter, he noted

the injuries which we have already extracted. He prepared

the note. It is in his handwriting and signed by him.

Dr. Syed was with him as colleague and he also signed on

the post-mortem note. Injuries 1 and 2 noted in paragraph

17 are corresponding to the internal injury of Larynx,

trachea and bronchi noted in paragraph 20 are only probable

by pressing the neck by using fingers and palm. These

injuries are sufficient to cause the death of the deceased.

The external injury, namely No.4, that is contusion of upper

lip is corresponding to injury to teeth and tongue. These

two injuries are probable by pressing the mouth by hand.

Paragraph 7 and 8 of the PW1 deposition:

“Injury no. 3 noted in para no. 17 occurred to both legs are probable by caught hold of both the legs with pressure of hand.

Injury nos. 1 to 4 are probable at once, if one person caught hold the legs by pressing with his hands of that deceased, one person if press the mouth by his hand and another person press the neck by his hand and all these persons acted so at one time, to deceased, injury nos. 1 to 4 are probable at one time.”

22 He agrees with the proposition given by Modi’s Medical

Jurisprudence, 22nd edition at page no.333 “Bruises or

contrusion injuries which are caused by compression. He

also agrees with the following statement contained in Modi

on Medical Jurisprudence 22nd Edition:

“Suicidal strangulation is not very common, though sometimes cases are met with. In these cases, some contrivancem 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.”

He agrees with the said proposition. He says according to

him in suicidal death there are no marks of violence and

in homicidal death there are marks of violence. He also

23 agrees with the following proposition from the work Modi’s

Medical Jurisprudence at page 270:

“3. Saliva- Dribbling out of the mouth down on the chin and chest.

4. Neck – Stretched and clongated in fresh bodies.

7. Ligature mark – 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- link.

10. Injury to the muscles of the neck- Rare.

14. Scratches, abrasions and bruises on the face, neck and other parts of the body – Usually not present.”

21. He states that the above features can be noticed in a case of hanging and he agrees with the same proposition.

While doing post-mortem he deposed he has not noticed any

of the above symptoms on the dead body and it is not noted

in the post-mortem as it is not seen. He definitely opines

that in the given case, the death occurred due to throttling

by external violence and it is homicidal death. He goes

on to depose that injury No.2 and 3 in column 20 of the post

mortem are only to be noticed in case of homicidal death.

And these are marks of violence and thus cannot be noticed

24 in case of hanging and suicidal death. He issued Exh. 23

provisional death certificate immediately to the police.

It is in the hand writing of Dr. Syed. Both he and Dr. Syed

have signed it. In cross examination he would state as

follows:

The dead body of the deceased was brought at about 7 to

7.30 a.m. After checking the deceased was declared

dead and information was given to the police. He denies

that when deceased was brought she was alive. He denies

that he was confused and the exact time of the death was

not mentioned. Rigor Mortis was stated to develop 3

hour after death and completes within 12 hours. He has

not preserved the viscera. According to him Police

Commissioner immediately demanded provisional death

certificate. He denies that he issued the post-mortem

report on 25.08.2005. The post-mortem note was already

prepared and one doctor was not available to sign it and

therefore after signing it, it was issued. He denies

that he has prepared on 25.08.2005. He further denies

that when the body of deceased was brought, it had

25 elongated neck. He states it is untrue to say that

Injury No.1 in para 17 of the post-mortem note can appear

in case of hanging also. Bruises and ecchymoses are

sometimes seen in case of hanging also in the groove of

the ligature mark. He deposed that it is not true that

Injury No.3 in para No.17 of the PM note is not at all

possible to occur when the body is in hanging condition

and some persons by catching one leg and another leg are

trying to remove the dead body. He says in further

cross examination that it is true that Injury No.1 in

para 20(c) of post-mortem note is probable in the case

of hanging. As far as Injury No.2 in Para 20(c), he

states that it is not true that Injury No.2 occur in the

case of hanging. He also deposed that it is not true

to say that in the case of hanging thyroid cartilage may

be crushed. He has not seen nail mark and scratch of

nail mark on the face or neck of the deceased. He

deposed that these types of marks used to be present in

the case of throttling but it is not necessary to be

present.

26

Injury No.5 at 20(c) occur in the case of hanging.

Lungs getting congested is common in hanging as well as

throttling. He further says that it is not true to say

that in the case of hanging when person is struggling

in that case teeth may break. He further says it is not

true to say that saliva was coming out from the mouth

of the deceased and relatives were cleaning it. He has

not seen whether the face of the deceased was pale or

not. In the case of strangulation by rope or ‘Dupatta’,

the ligature mark may be noticed around the neck. While

doing post-mortem he has noticed injuries at the head

and back of the deceased. It is true that in the case

of hanging, the eyes used to close or used to remain in

semi close condition. It is true that in the case of

hanging fracture of larynx and trachea - often found

also hyoidbone. It is true he says that the deceased

had not faced fracture to larynx, trachea and hyoidbone.

In the case of hanging fracture by larynx and trachea

– very rare and that too in judicial hanging. He denies

that her stomach may remain empty due to vomiting. In

27 cross examination for the 4th accused, he states inter

alia as follows:

In case of hanging and in case of throttling pressure

on neck is common factor. In the case of throttling

by hand, a person can resist that throttling. In case

of resistance there will be mark of nail on neck. The

person who is facing throttling when one person is

pressing the mouth and other person is catching the

legs by using pressure of his hands he will resist by

banging the hand on earth in that case there will be

injuries to hands. It is probably if the legs are

caught hold by hand, then it is possible to occur

injury at posterior side of the leg. In post-mortem,

no-injury marks on hands are noted. And also no

injury marks at posterior side of leg is noted. He

deposed that it is not true that the injuries in para

17 are possible by accident and by assault also. He

also says that it is not true to say that the injuries

shown in in para 20 are possibly by hanging. Ligature

mark are occurred on the basis of smoothness and 28 hardness of the things used for occurring of the

ligature mark. It is true that if the smooth article

like ‘Dupatta of Malmal’ used for hanging then there

will be no ligature mark on the leg. He states it is

not true that Injury Nos. 1 to 4 noted in paragraph

17 are probable to occur one by one and not at once.

It is not true that in case of hanging injury No.3 is

possible by coming into contact of legs with stool and

table etc. If only external injury No.1 and 2

occurred as shown in paragraph 17 and immediately

medical aid is provided he may survive. In the case

of throttling by hands by using fingers and palm there

cannot be fracture of larynx. In re-examination he

said that in the case of strangulation by hand fracture

of larynx and trachea is not necessary to be occurred

even though it is said in column No.12 of strangulation

at page No.270 (apparently in Modi’s work).

According to him, fracture of larynx and trachea used

to occur in strangulation but in the case of throttling

by hand such fracture cannot occur. By using hard and

29 blunt object like stone and stick if the strangulation

is caused, in that case fracture of larynx and trachea

often found also hyoidbone.

22. The differences between hanging and strangulation have been highlighted by Modi on Medical Jurisprudence and

Toxicology, 25th Edition, as follows:

Hanging Strangulation

1. Most suicidal. 1. Mostly homicidal. 2. Face-Usual pale and 2. Face-Congested, livid and petechiae rare. marked with petechiae. 3. Saliva-Dribbling out of 3. Saliva-No such dribbling mouth down on the chin and chest. 4. Neck-Stretched and 4. Neck-Not so. elongated in fresh bodies. 5. External signs of asphyxia5. External signs of asphyxia, usually not well marked. very well marked (minimal if death due to vasovagal and carotid sinus effect. 6. Ligature mark-Oblique, 6. Ligature mark-Horizontal or Non-continuous placed high transverse continuous, round Up in the neck between the the neck, low down in the neck Chin and the larynx, the below the thyroid, the base of Base of the groove or furrow the groove or furrow being Being hard, yellow and soft and reddish. Parachment-like.

7. Abrasions and ecchymoses 7. Abrasions and ecchymoses round round about the edges of about the edges of the ligature the ligature mark, rare. Mark, common.

30

8. Subcutaneous tissues 8. Subcutaneous tissues under the Under the mark-White, mark-Ecchymosed. Hard and glistening.

9. Injury to the muscles of 9. Injury to the muscles of the neck-

Neck-Rare. Common. 10. Carotid arteries, 10. Carotid arteries, internal coats Internal coats ruptured in ordinarily ruptured.

11. Fracture of the larynx 11. Fracture of the larynx, trachea and trachea-Very rare and and hyoid bone. may be found that too in judicial hanging.

12. Fracture-dislocation of 12. Fracture-dislocation of the the cervical vertebrae- the cervical vertebrae-Rare. Common in judicial hanging.

13. Scratches, abrasions and 13. Scratches, abrasions fingernail bruises on the face, neck marks and bruises on the face, and other parts of the body- neck and other parts of the body- Usually not present. Usually present.

14. No evidence of sexual 14. No evidence of sexual assault.

Assault.

15. Emphysematous bullae on 15. Emphysematous bullae on the Surface of the lungs- surface of the lungs - May be Not present. Present.

23. As to what is the distinction between strangulation and throttling is also dealt within the self-same work:

“Definition-Strangulation is defined as the compression of the neck by a force other than hanging. Weight of the body has nothing to do with strangulation.

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.

31 When constriction is produced by the pressure of the fingers and palms upon the throat, it is called as throttling. When strangulation is brought about by compressing the throat with a foot, knee, bend of elbow, or some other solid substances, it is known as mugging (strangle hold).

A form of strangulation, known as Bansdola, is sometimes practised in northern India. In the form, a strong bamboo or lathi (wooden club) is placed across the throat and another across the back of the neck. These are strongly fastened t one end. A rope is passed round the other end, which is bound together, and the unfortunate victim is squeezed to death. The throat is also pressed by placing a lathi or bamboo across the front of the neck and standing with a foot on each of lathi or bamboo.

Garrotting is another method that was used by thugs around 1862 in India. A rope or a loincloth is suddenly thrown over the head and quickly tightened around neck. Due to sudden loss of consciousness, there is no struggle. The assailant is then able to tie the ligature.”

24. It is necessary in this case to look at the post-mortem and also the evidence of the medical officer P.W.1. In the

light of the differences between hanging and strangulation,

in a case of hanging, saliva will dribble down the mouth

down on the chin and the chest whereas in a case of

strangulation, there will be no such dribbling. P.W.1,

Medical Officer was specifically asked with respect to

Saliva. He has stated that while doing post-mortem he has 32 not noticed saliva. In cross examination also he states

that it is not true to say that Saliva was coming out of

the mouth of the deceased and relatives were cleaning it.

In the case of hanging, the neck will be stretched,

elongated in fresh bodies while it is not so in the case

of strangulation. P.W.1 has stated that he has not noticed

that the neck was stretched and elongated in the case of

the deceased.

25. P.W.1, it is true, has opined that in the case of

hanging, eyes used to close or used to remain in semi closed

condition. It may be noted at this juncture that paragraph

13 of the post-mortem wherein it is stated eyes semi open,

tongue within mouth.

External Injury No.1 in paragraph 17 is stated to be

bruising and ecchimoysses present on both side of neck about

7 cm. x 1 cm.. In this connection the deposition of P.W.1

doctor is relevant:

“5. Injury nos. 1 and 2 noted in para no.17 are corresponding to internal injuries of larynx trachea and bronchi noted in para 20 under the head thorax in PM note Ex.22.

these injuries noted in PM note are only

33 probably by pressing the neck by using fingers and palm. These injuries are sufficient to cause the death of deceased in ordinary course of nature.”

26. Abrasion and Ecchymosses round about the edges of ligature mark is stated to be common in case of

strangulation. Further P.W. 1 deposes that upper external

injury No.4, that is contusion, on upper lip noted in

paragraph 17 is corresponding injury to teeth and tongue

which is described in paragraph 21. He further states that

these two injuries are probable for pressing mouth by hand.

27. Injury to the muscles of the neck is stated to be common in case of strangulation whereas in a case of hanging

injury to the muscles of the neck is rare. In this

connection it is to be noticed that in paragraph 20 of the

post-mortem, it is stated that both sternomastoid muscle

crushed and severe haemorrhage present beneath it. In this

connection, it is relevant to understand what is

sternomastoid muscle and where it is located. The

Sternocleidomastoid muscle is also known as sternomastoid

34 muscle. It is one of the largest and most superficial

cervical muscle located in the superficial layer on the side

of the neck. It has its origin from the middle portion of

the clavical and the manubrium sternix. Manubrium sternix

is upper most portion of the sternum bone. The post mortem

finding in this case is to the effect that sternomashoid

muscle is crushed and there is severe haemorrhage present

beneath it. This feature is compatible with the case being

one of strangulation as injury to the muscle of the neck

is rare in hanging. Fracture – dislocation of the cervical

vertebrae is common in judicial hanging whereas it is rare

in the case of strangulation. The post-mortem result does

not show that there is fracture or dislocation of cervical

vertebrae. The cervical vertebrae are the vertebrae of the

neck immediately below the skull. Neither in the

post-mortem nor in the deposition of PW 1 is anything

brought out to show that there is either fracture or

dislocation of the cervical vertebrae. The absence of the

same also probablises clearly the case of prosecution that

this is a case of strangulation or rather throttling.

35

28. It is no doubt true that in the case of hanging, fracture of the larynx and trachea is very rare and that

too it may be found in judicial hanging. On the other hand,

fracture on the larynx, trachea and hyoidbone indicates

strangulation. P.W.1 doctor states in cross examination

thus say that it is true that the deceased had not faced

fracture to the larynx, trachea or hyoidbone. P.W. 1 in

the re-examination explains the absence of fracture to

larynx, trachea and hynoidbone in the following terms:

In case of strangulation by hand fracture of

that larynx and trachea is not necessary to be

occurred and the distinction between hanging

and strangulation and the general tendencies of

hanging and strangulation are given.

29. He further states according to him, in the case of throttling by hand, fracture of the larynx and trachea

cannot occur. It occurs in strangulation. He deposed

36 that by using hand and blunt object like stone and stick,

if strangulation is caused, in that case fracture of the

larynx, trachea and hyoidbone have been found also. We

have noticed that throttling is constriction produced by

pressure of fingers and palm upon throat. In ligature

strangulation it can be either by leg or by any other means.

Mugging is when strangulation is brought about with the

foot, knee, bend of elbow or some other solid substances.

The deposition of the medical officer is not inconsistent

with the distinction between throttling and strangulation.

In this case the choice is between finding death by hanging

or by throttling. We have noticed that among the injuries,

Injury No.3 in paragraph 20 is thyroid cartilage is crushed

laterally on both side on left side. The further injury

which is noted is cricoid cartilage and it is also crushed

on both side. P.W. 1 doctor has deposed that Injury No.2

and 3 in paragraph 20, namely, both sternomastoid muscle

being crushed and severe haemorrhage being present beneath

it and Injury No.3 thyroid cartilage being crushed

literally on both sides on left side are only noticed in

37 the case of homicidal death. He has further deposed that

these are marks of violence and they cannot be noticed in

the case of hanging and suicidal death. We have already

noticed that injury to the muscle of the neck, is only rarely

found in the case of hanging whereas injury to the muscle

of the neck is common in strangulation and that the

sternomastoid muscle is indeed a muscle of the neck.

30. One of the contentions of the appellant is if there is a case of throttling or any other form of strangulation,

the victim would undoubtedly resist. The resistance would

produce struggling and there would be marking of nail on

the neck and face. P.W. 1 has indeed deposed that he has

not seen nail marks and scratches of nail marks on the face

and the neck of the deceased. In the work by Modi,

scratches, abrasion fingernail and bruises on the face,

neck and other parts of the body are usually present in the

case of strangulation. P.W. 1 would however, state that

these types of marks used to be present in the case of

throttling but it is not necessary to be present. He also

38 further says that bruising is itself indicate, it is reddish

brown colour.

31. Having considered the conclusion in the post-mortem and the deposition of medical officer and analysed in the

light of the principles laid down in the work Modi’s Medical

Jurisprudence and Toxicology, let us also appreciate the

other evidence on record.

32. Both the courts have noted from the spot panchnama that the height of the room was just 5 ft. 10 inches. A

conclusion has been reached that the theory of hanging is

incompatible by a person of normal height or even if the

height is 5 ft. We see no reason to take a different view

in this regard. This also strengthens the case of the

prosecution based on findings in the post-mortem and the

deposition of the medical officer.

33. There is a case for the appellant that it was the appellant who took the deceased to the hospital. This is

39 true but the further inference sought to be drawn by the

appellant that it means that the appellant was innocent and

had he not been innocent he would have not brought the body

of the deceased to the hospital, is not true. Having regard

to the other evidence which we have already discussed

pointing it to be a case of strangulation or rather

throttling, apparently the appellant sought to build up a

case of the deceased dying as a result of hanging. In fact,

in his questioning under Section 313 Cr.P.C. he does not

specifically set up a case of hanging as such. He states

in answer to question No.42 that all witnesses are speaking

lie against us due to teaching of his father-in-law and

Sunnabee (P.W.4). In answer to question No.45 which was,

do you want to say anything else about the case, he says

it is a false case.

34. There remains the contention of the appellant that since the prosecution has set up a specific case and the

said charge was under Section 302 read with Section 34 IPC

on the basis that appellant along with accused Nos.2 to 4

40 together had committed the crime and once the High Court

has acquitted accused No.2 to 4, it is not open to the High

Court to convict the appellant under Section 302 IPC on the

basis that the crime was committed by only him and therefore

he was entitled to an acquittal.

35. In Krishna Govind Patil v. State of Maharashtra3, four accused were charged for the murder of one Vishwanath. The

prosecution case inter alia was that there was a grudge

against Vishwa Nath as he had helped Deoram Maruti Patil

in getting acquittal in a murder case where relatives of

the four accused were murdered. The four accused were

charged under Section 302 IPC read with Section 34 IPC.

They were all separately charged under Section 302 IPC.

The Sessions Judge acquitted all the accused. The State

preferred an appeal to the High Court against acquittal

under Section 302 read with Section 34 IPC. No appeal was

preferred against the order of acquittal under Section 302

IPC. The High Court dismissed the appeal against accused

3 AIR 1963 SC 1413

41 1,3 and 4. The High court, however, convicted the 2nd

accused under Section 302 read with Section 34 IPC. It is

in this appeal by the 2nd accused that this Court proceeded

to consider various situations which may arise and

thereafter proceeded to held as follows:

“8. But the present case falls outside the said three illustrations. The High Court gave conflicting findings. While it acquitted Accused 1, 3 and 4 under Section 302, read with Section 34 of the Indian Penal Code, it convicted Accused 2 under Section 302, read with Section 34, of the said Code, for having committed the offence jointly with the acquitted persons. That is a legally impossible position. When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same: it would mean that they did not take part in the offence. The effect of the acquittal of Accused 1, 3 and 4 is that they did not conjointly act with Accused 2 in committing the murder. If they did not act conjointly with Accused 2, Accused 2 could not have acted conjointly with them. Realizing this mutually destructive findings of the High Court, learned counsel for the State attempted to sustain the finding of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the

42 learned Judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused. We have gone through the entire judgment carefully with the learned counsel. But the observations of the learned Judges as regards the “other participants” in the crime must in the context refer only to the “one or other of that said three acquitted accused participated in the offer he committed by Accused 2”. There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard. We, therefore, hold that the judgment of the High Court cannot stand. We are satisfied that on the findings arrived at by the High Court, the conviction of Accused 2 is clearly wrong.”

36. In similar vein is the view taken in the judgment of this Court in Sawal Das v. State of Bihar 4 wherein the

appellant, his father and his step mother were accused of

committing an offence charged under Section 302

simpliciter. The appellant, his father, driver and 8

others were charged under Section 201 IPC. The appellant’s

step mother was charged under Section 302 read with Section

109 IPC. Though the trial Court convicted the appellant,

4 1974 (4) SCC 193

43 his father and step mother under Section 302 read with

Section 34 IPC which was the amended charge by the trial

Court, the High court acquitted the appellant, his father

and step mother under Sections 302 read with Section 34 IPC

but instead found the appellant guilty under Section 302

simpliciter. This is besides finding him guilty under

Section 201 IPC but without separate sentence against the

appellant. This Court considered the circumstantial

evidence. It referred to the judgment of this Court in

Krishna Govind Patil v. State of Maharashtra(supra) and

held as follows:

“14. Mr. Mulla, appearing for the appellant, has also drawn our attention to K.G. Patil v. State of Maharashtra [AIR 1963 SC 1413] . This Court held there that, when two out of three accused persons, each having been charged under Section 302 read with Section 34, Indian Penal Code, were acquitted, it must be assumed that the two acquitted persons did not participate in the commission of the offence at all. It is contended that the natural result of this view is that the particular act of the individual accused which brought about the death of the murdered person must be established beyond doubt before he is

44 singly and separately convicted under Section 302, Indian Penal Code simpliciter.”

But it is relevant to notice paragraph 17 and 18 of the

judgment and the same read as under:

“17. We think that, upon the facts of this case, there could be a reasonable doubt as to whether Section 34 IPC could be applied to convict any of the three accused persons of murder. After excluding the application of Section 34 IPC to the case, the evidence does not also appear to us to prove conclusively that the appellant must have either throttled the deceased or done some other act, quite apart from the acts of his father and step-mother, which brought about the death. This result follows from the totality of evidence and the presumption from the non-production of Geeta Kurmini which destroys the value of the evidence, which weighed so much with the High Court, that the appellant was doing something like pushing or taking the murdered woman inside her room at the time when she was last seen alive.

“18. The trial court and the High Court, relying on the evidence of some bleeding of the body of the deceased, admitted by the appellant to have been carried in the car to the burning ghat, and the absence of evidence of death caused by burning, came to the conclusion that the appellant must

45 have throttled the deceased. This was pure conjecture after eliminating the defence case of burning by accident. If it had been a case of throttling only, it would be difficult to explain the cries of murdered woman for help which were heard by witnesses on the road unless we assume that the murdered woman cried out, as she may have done, before the hands which choked her were placed on her throat. Therefore, although we may hold, as we do, that this must be a case of murder, it is not possible for us to find conclusively that it was a case of throttling and of nothing else or that the person who could have throttled or done some other act which actually killed the deceased was the appellant and not his father or stepmother.”

(emphasis supplied)

37. In Sukhram case (supra) two accused persons were convicted by the trial Court under Section 302 read

with Section 34 IPC and under Section 436 read with

Section 34 IPC. The High Court acquitted one of them

giving him the benefit of doubt. It is found that

though the co-accused and the appellant were

individually charged under Sections 302 and 436 IPC

46 and alternatively under Sections 302 read with 34 IPC

and Section 436 read with Section 34 IPC, the latter

was found acceptable to the Sessions Judge. The

co-accused was acquitted on the ground of benefit of

doubt. In such circumstances, since this was a case

where the co-accused was a named person and was

acquitted, the appellant could not be said to have

acted conjointly with anyone in the commission of the

offence. The court also noticed infirmities and

contradictions in the evidence.

38. It is clear the evidence in this case clearly supports the case of throttling. As far as the motive is concerned,

there is the evidence of P.W.4 that a few days prior to the

date of incident appellant had visited her and told her

about not being given the half tola gold and money. She

also deposed about being told by the appellant that result

of non-compliance with his demands would be that he would

kill his wife. P.W.3 has also spoken of the threat as

conveyed by P.W.4. This has been believed in by two courts.

47

39. Another circumstances which is found by the High Court is that, as is natural, the appellant and his wife had a

separate room, therefore, there was a custodial death in

which the appellant alone has been implicated. The death

is found to have taken place somewhere around 3.30 in the

morning. The finding by the High Court is that by that time

the appellant would be with his wife. This cannot be

described as manifestly erroneous.

40. As far as the contention of the appellant that the date of incident is 10.3.2005 but post mortem note shows date

25.8.2005, P.W.1 says that it is not true that he issued

Post-mortem note on 25.8.2005. He further says that it is

his say that PM Note was already prepared and one doctor

was not available to sign it and therefore after signing

it was issued. He further says, it is not true to say that

he has prepared the PM note on 25.8.2005.

48

41. The post-mortem note indicates time of receipt of the body as 3.15 p.m. on 10.3.2005. The post mortem is stated

to have begun at 3.30 p.m. on 10.3.2005 and ended at 4.45

p.m. on 10.3.2005. It is stated to be done by P.W.1 medical

officer and by one another, namely, Dr. A.I. Syed. The date

is shown as 25.8.2005 on the post mortem note. This

apparently, is in tune with the deposition of P.W.1 that

other doctor was not available. At the same time, we notice

that on said date 10.3.2005, there is a provisional death

certificate which has been issued, according to P.W.1 him,

to the police immediately. It is in the handwriting of

Dr. syed. He deposes that he and Dr. Syed have both signed

on it and the contents are true and correct. It is marked

as Exh.23. In his cross it is deposed by him that according

to him police machinery immediately demands provisional

death certificate and when the cause of death is known after

post-mortem they immediately issued the provisional death

certificate. It can be understood as follows:

49

Apparently, the post-mortem was conducted. They came

to the conclusion that the cause of death was as noted

in the provisional death certificate and so issued the

same. The detailed contents of the post-mortem were

thereafter entered. No doubt, there is some gap, that

is from 10.03.2005 to 25.08.2005 but this is on the

basis that one doctor was not available to sign it.

42. It is inter alia certified by the two doctors in the provisional death certificate that they have done the post

mortem on the body of Mrs. Sultana Javed Sheikh, 20 years

of age on 10.3.2005 and the probable cause of death seems

to be acute cardiorespiratory arrest secondary to acute

asphyxia, secondary to throttling. The said certificate

is dated 10.03.2005. There is the date, 25.08.2005 on the

Post Mortem report. Also, the date 10.03.2005 is shown

against the Column-forwarded to the Police Sub Inspector,

Naldurg. But the reason appears to be that though Post

Mortem was conducted on 10.03.2005, it was signed by the

doctor on 25.08.2005. Though it could be argued that the

50 reason for the date 25.08.2005 is that one of the doctors

was not available but however, on 10.03.2005, in the

provisional death certificate how could both the doctors

have signed. It would appear from the report that Dr. A.I.

Syed is the Medical Officer of Primary Health Centre, Jalkot

and it is his non availability after the content were

entered in the Post Mortem report that led to report being

delayed. Though there is a gap, we find assurance from the

fact that the provisional death certificate which is marked

as Exh.E-23 and which is dated 10.03.2005 corroborates E-22

Post Mortem.

43. As far as the injuries in the Inquest report not being noticed in the post-mortem report is concerned, there can

no doubt that the medical doctor knows exactly what medical

injuries are and ordinarily in case of inconsistency, the

medical report of the doctor should prevail. Having regard

to the post mortem and the evidence of P.W.1, the nature

of injuries noticed as explained by the deposition of P.W.1

unerringly point to the death being caused by throttling

as opined by the doctor. Much may not turn on the injuries

51 which are alleged to have been noted in the Inquest not being

noted in the post mortem note.

44. We see no merit in the appeal. The appeal is

dismissed. As appellant has been released on bail, the

bail bonds are cancelled and appellant be taken into custody

to serve out the remaining sentence.

…………………………………………………J. [SNAJAY KISHAN KAUL]

…………………………………………………J. [K.M. JOSEPH] NEW DELHI NOVEMBER 06, 2019

52