Sahebrao Mohan Berad vs State Of Maharashtra

SAHEBRAO MOHAN BERAD .... APPELLANT

VERSUS

STATE OF MAHARASHTRA ..... RESPONDENT

J U D G M E N T

CHANDRAMAULI KR. PRASAD, J.

1. Deceased Laxmibai was married to the appellant about

three years prior to the occurrence. She was residing with the

appellant and his parents. In the early hours of 26th June,

1984, her dead body was found in a well close to their

residence. A report in regard to the incident was given to the

police disclosing that she met with an accidental death due to

drowning. During the investigation it was found that the

deceased met with the homicidal death and accordingly police

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submitted charge-sheet under Section 302/34 and 201 of the

Indian Penal Code against the appellant and his parents and

ultimately they were committed to the court of Sessions to face

trial for the aforesaid offences.

2. Trial Court acquitted all of them of all the charges.

3. On appeal by the State of Maharashtra, the Division

Bench constituting N.V. Dabholkar and B.H. Marlapalle, JJ.

differed in their conclusion. Dabholkar, J. dismissed the

appeal and affirmed the order of acquittal and while rendering

opinion came to the conclusion that the death was not

homicidal and further the circumstance relied on by the

prosecution did not lead to one and the only conclusion that

the appellant had committed the murder of his wife. In this

connection Dabholkar, J. has observed as follows:

"The trial court has held that the prosecution

has failed to prove the death to be homicidal. In this

context, only few admissions by the Medical Officer

Dr. (Mrs.) Sunanda Pande need to be narrated

verbatim. Earlier to these admissions, she has stated

in her chief-examination that she had given the

opinion of strangulation on the basis of injury

referred in column 20 i.e. Larynx, Trachea and

Bronchi contain frothy discharge, Trachea congested

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and shows petechial hemorrhage in mucose,

extravasations of blood in subcutaneous tissues of

neck and in muscles. As against this, she has

admitted that "Larynx and Trachea contained frothy

discharge. This is a sign of drowning. In drowning,

the lung is always edematous. This is also a sign of

drowning". She has further admitted that "In case of

drowning, there is whitish discharge from nose. The

whitish discharge as mentioned in column 13 is a

sign of drowning". It may be stated here that in

column 13, she has recorded presence of whitish

discharge through right nostril. She stated that "In

the post mortem notes there are 3 to 4 signs of

drowning" and further stated that "In case of

strangulation, we can not find any sign of drowning

internally".

In view of existence of signs of drowning, it

cannot be said that Ld. Judge has taken

unreasonable view in recording a finding the

prosecution has failed to prove the death to be

homicidal i.e. death to be by strangulation, with the

aid of a rolling pin."

4. Marlapalle, J., however, allowed the appeal, set aside the

order of acquittal and held that the circumstances led to the

one and on the only conclusion that the appellant had

committed the murder of his wife. However, both the Hon'ble

Judges maintained the acquittal of the appellant's mother,

accused Tulsabai. No decision on merit so far as the

involvement of the appellants father Mohan Kisan Berad was

rendered as he died during the pendency of the appeal before

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the High Court. While recording the finding that the deceased

met with homicidal death Marlapalle. J. observed as follows:

"He opined before us that in the case at hand the

death was due to drowning but it was clear from the

postmortem notes that the deceased was first

strangulated, made unconscious and then thrown in

the well. He, therefore, reiterated that it was for

these reasons that there was no water found in the

lungs. He referred to the injuries on the neck of the

deceased noted in column No.20 of the postmortem

notes and confirmed the said injuries were by way of

strangulation and they could have made Laxmibai

unconscious and in that state she thrown in the well.

In short, he confirmed the opinion that the death of

Laxmibai was homicidal and not accidental."

5. As the Judges constituting the Bench differed in their

opinion regarding the guilt of the appellant and the cause of

death, the appeal was referred for decision to third Hon'ble

Judge. Accordingly, the appeal was placed for consideration

before P.B. Gaikwad, J. He agreed with the conclusion of the

Marlapalle, J. and came to the conclusion that the

circumstances proved beyond all reasonable doubt lead to one

and on the only conclusion towards the guilt of the appellant

and further the deceased died a homicidal death. For coming

to the aforesaid conclusion Gaikwad, J. held that a false report

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was given by PW.1, Kashinath, the uncle of the appellant at

the instance of the father of the appellant alleging accidental

death of the deceased. Another circumstance relied on was

that during the night between 25th of June, 1984 and 26th of

June, 1984 the deceased Laxmibai was in the company of the

appellant and residing with him. Recovery of rolling pin by

which the deceased was strangulated at the instance of the

appellant was another circumstance relied on to convict the

appellant. Failure of the appellant, who is none other than her

husband and living together even in the night of occurrence to

explain the circumstances under which Laxmibai met with the

homicidal death was also taken into consideration to establish

the guilt of the appellant. As regards the cause of death

Gaikwad, J. held that Laxmibai died due to strangulation and

it was a homicidal death. In this connection he observed as

follows:

"The Doctor, after considering the findings as

regards external and internal injuries given opinion

as regards cause of death as "death due to

strangulation". If the evidence of PW.7 is read

together with the evidence of post mortem report and

the symptom; noticed by her on external and internal

examination, I find that the said evidence is

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satisfactory and convincing so far as opinion about

cause of death is concerned."

6. Accordingly, the order of the trial court acquitting the

appellant of both the charges was set aside and he was held

guilty for offence punishable under Section 302 and 201 of the

Indian Penal Code and sentenced to suffer imprisonment for

life and rigorous imprisonment for three years respectively.

7. That is how the appellant is before us in the present

appeal.

8. Main plank of the submission of Mr. Arun R. Pednekar,

learned Counsel appearing on behalf of the appellant is that

the deceased Laxmibai met with an accidental death due to

drowning and, therefore, the conviction of the appellant under

Section 302 and 201 of the Indian Penal Code is bad in law.

He points out that PW.7, Dr.(Mrs.) Sunanda Pande, during the

postmortem examination, has not found any external injury

on the person of the deceased. Presence of frothy discharge in

the larynx and trachea and whitish discharge from right

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nostril in the postmortem examination of the deceased clearly

go to show that the deceased met with an accidental death due

to drowning.

9. Ms. Asha Gopalan Nair, learned Counsel representing the

respondent-State, however, submits that PW.7, Dr.(Mrs.)

Sunanda who conducted the postmortem examination in

unequivocal terms stated that the deceased died due to

strangulation and there is no reason to disbelieve her

evidence. She points out that the evidence of PW.7, Dr.

Sunanda and the postmortem report and the fact found by her

on external and internal examination of the dead body clearly

go to suggest that the deceased met with a homicidal death.

10. We have bestowed our consideration to the rival

submission and we do not find any substance in the

submission of Mr. Pednekar. PW.7, Dr. Sunanda had

performed postmortem over the dead body of Laxmibai on 26th

June, 1984 between 2 P.M. and 3 P.M. Her assertion that she

had experience of conducting the postmortem examination has

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not been questioned by the appellant. She had found

heamotoma on the neck and in her opinion the death was

possible by pressing the rolling pin on the neck. The rolling

pin recovered at the instance of the appellant was shown to

her and she gave opinion that the death can be caused by

pressing the same on neck.

11. This Doctor though had found frothy discharge in the

larynx and trachea and whitish discharge from the right

nostril, still on consideration of the finding as regards the

external and internal injuries came to the definite opinion that

the death was due to strangulation. She had specifically

denied the suggestion that the deceased met with an

accidental death due to drowning. In the face of the same we

find it difficult to hold that the deceased met with an

accidental death. True it is that few signs of drowning were

found on the dead body in the post mortem examination and

the doctor though cognizant of the same came to the definite

conclusion that the deceased died of strangulation. In our

opinion, the doctor who examined the deceased and conducted

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the post-mortem is the only competent person to opine the

nature of injuries and the cause of death. It is only in a case,

where the opinion is inherently defective, the Court will

discard its evidence. Reference in this connection can be

made to a decision of this Court in the case of Mafabhai

Nagarbhai Raval vs. State of Gujarat (1992) 4 SCC 69 in

which it has been held as follows :

"3.......... It is needles to say that the doctor who has

examined the deceased and conducted the post-

mortem is the only competent witness to speak about

the nature of injuries and the cause of death. Unless

there is something inherently defective the court

cannot substitute its opinion for that of the doctor."

12. We have not found the death of the deceased to be

accidental. Further, the circumstances referred to above

clearly go to point out towards the guilt of the appellant.

13. We are of the opinion that the High Court is right in

coming to the conclusion that the circumstances proved

clearly points out towards the guilt of the appellant and

further deceased met with a homicidal death.

10 14. Appellant is on bail, his bail bonds are cancelled and he

is directed to surrender forthwith to serve out the sentence.

15. In the result, we do not find any merit in this appeal and

the same is dismissed accordingly.

................................................J.

(HARJIT SINGH BEDI)

................................................J.

(CHANDRAMAULI KR. PRASAD)

NEW DELHI,

MARCH 18, 2011.