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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.661 OF 1998
THE STATE OF MAHARASHTRA )...APPELLANT
)
2) SOU. KHATIJA MAHAMMAD SURVE )
Aged about 46 years, Occ : Household )
)
Both residing at Sovanas, Taluka – Khed, )
District – Ratnagiri. )...RESPONDENTS
Mr.H.J.Dedhia, APP for the Appellant-State.
Mr.S.V.Marwadi a/w. Mr.Ganesh Nadar, Advocate for the
Respondents.
JUDGMENT
1 This appeal is filed by the State challenging the judgment and order of acquittal dated 21st April 1998 passed in avk 1/21 Sessions Case No.8 of 1997 by the learned Sessions Judge, Ratnagiri, for the offence punishable under Section 302 read with 34 of the Indian Penal Code, 1860 (Indian Penal Code).
2 Narrated in nutshell, on 17th July 1996 one Saud Abdul Wahab Surve (PW[1]) intimated Police Station Officer Khed that his daughter namely Firoza Mohd. Isak Surve (deceased) was married before three months on 16th July 1996 at about 12.30 p.m. While she had gone to take bath, she slipped and fell on the bathroom floor. Dr.Deelip Madhukar Daithankar (PW[4]) was accordingly summoned who examined her and declared her dead. He further informed Police Station Officer Khed that he had no complaints against anybody.
3 On the basis of above said information, ADR No.39 of 1996 under Section 174 of the Code of Criminal Procedure (Cr.P.C.) vide Station Diary No.202 of 1996 came to be registered by Police Head Constable of Police Station Khed. avk 2/21
4 It then appears from the record that the said ADR was undertaken for investigation by PW[9] Shripat Sadu Gurav – informant for investigation. During investigation he got the postmortem done over the dead body. The concerned Autopsy Surgeon opined the cause of death as asphyxia, due to suffocation. He even inspected the bathroom where the incident had taken place and did not find anything abnormal. He also, during the course of investigation, noted that the family members were giving evasive replies to his queries and keeping in mind the cause of death, as revealed in the postmortem, he concluded that Firoza (deceased) was suffocated to death by pressing her nose with the help of pillow. 5 PW[9] accordingly lodged the report, on the basis of which, Crime No. 129 of 1996 under Section 302 read with 34 of the IPC came to be registered with Police Station Khed.
6 It further appears from the record that PW10 Popat Vinayak Ahivale, the then C.P.I. Dapoli carried out further investigation. During the course of investigation he recovered avk 3/21 pillow and chaddar at the instance of A-2 vide Disclosure Statement recorded under Section 27 of the Evidence Act. He also sent the articles collected in the case to Regional Forensic Science Laboratory, Pune. After collecting the Chemical Analyzer’s Report and on conclusion of investigation forwarded the charge-sheet against the present respondents-accused.
7 To substantiate the Charge against the respondentsaccused, the prosecution has examined as many as ten witnesses and exhibited number of documents. The respondents-accused were questioned under Section 313 of the Cr.P.C. about the incriminating evidence and circumstances and they denied all of them as false.
8 Mr.Dedhia, learned APP for the appellant-State, submitted that since the case was based on circumstantial evidence and as the prosecution was able to establish various circumstances, despite that the learned trial Court wrongly turned down those circumstances holding that the circumstances are not incriminating and the same cannot be taken to be adverse against avk 4/21 the respondents-accused. According to learned APP, the fact that the deceased was found to be murdered in her matrimonial home in which the respondents-accused along with younger brother of A-1 were residing, that in itself is a strong circumstance against the respondents-accused which the learned trial Court has failed to consider. Further, the learned trial Court also turned Nelson’s eye to the Inquest Panchnama and Spot Panchnama reports which show that the death of the deceased was unnatural. In nutshell, the learned trial Court has miserably failed to appreciate the evidence on record tendered by the prosecution witnesses in proper perspective. The fact that the prosecution has been able to establish the guilt by proving all the incriminating circumstances against the respondents-accused, the present appeal deserves to be allowed, argued learned APP.
9 Mr.Marwadi, learned counsel for the respondentsaccused, on the other hand, has supported the judgment and order of acquittal. The learned counsel takes strong exception to the submissions advanced by the learned APP contending that the avk 5/21 present case is based on circumstantial evidence and the prosecution has not been able to establish circumstances sufficiently to connect the accused with the alleged offence. Since the case has not been proved beyond reasonable doubt, the learned trial Court was justified in passing the order of acquittal. There being no merit in the appeal, the same is liable to be rejected, argued learned counsel.
10 Having heard the counsel for the parties and having perused the evidence and material on record, central question that arises for consideration is as to whether the death of deceased was homicidal in nature. Before that, we would like to note here quickly that there is no dispute to the fact that at the relevant time when the death of deceased occurred, the deceased was in company of accused and the younger brother of A-1. There is also no dispute to the fact that death of the deceased took place within few months of the marriage. This definitely raises suspicion regarding foul play having been played with the deceased but unless two material aspects of the case are proved, viz., firstly – avk 6/21 that the death was unnatural, and, secondly – that it was homicidal, the guilt cannot be proved and fastened on the accused.
11 In order to reach a finding regarding homicidal death, the medical evidence on record assumes greater significance. We will, however, have to examine and analyze the postmortem report and the evidence of PW[7] Dr.Shabbir Akbar Shaikh who carried out an autopsy over the dead body of the deceased. 12 PW[7] states in his evidence (Exh. 25) that on 17th July 1996, he performed an autopsy over the dead body of the deceased. On external examination of the dead body he noticed following injuries:
avk 7/21
3. Reddish bluish discolouration of medial aspect of upper arm and forearm (midpoint)
4. Neck was swollen oedematious cynosed bluish discolouration All the injuries noted by him were anti-mortem. His evidence then shows that on internal examination of the dead body, he noticed that left side of heart was empty and right side of heart contained black red blood clots. He also noted patechial haemorrage was present in brain. According to him, the probable cause of death was due to asphyxia, due to suffocation. He then proved the cause of death certificate at Exh. 26. The postmortem report is at Exh. 28.
13 The concluding part of his evidence shows that the death of deceased would have been caused by strangulation or by pressing pillow on the nose and mouth.
14 The evidence of this material witness appears to be avk 8/21 quite contradictory when on one breath he states that the death of deceased might have been caused because of strangulation and in another breath, due to asphyxia due to suffocation. He himself appears to be not sure as to what exactly was the cause of death. When this witness states that the death might have been caused by strangulation, on what basis he arrived to that finding or conclusion is not supported by any clear and cogent evidence. Even assuming for the sake of argument that the strangulation was the cause then his own cross-examination shows that the tongue was inside the mouth. Judicial note can be taken of the fact that in case of death due to strangulation, the tongue comes out of the mouth due to pressure on trachea and moreover there was no corresponding internal injury to the throat.
15 He admits in the cross-examination that asphyxial death may occur either by accident, violence, disease and suicide. He further admits that death due to asphyxia can also occur due to spasm of vocal cords, air embolism, pneumothorax, haemothorax, edema of lungs. Similarly, in case of severe reaction avk 9/21 of allergy, death may occur due to asphyxia. According to him, allergy may occur due to anything. He then lastly admits in the cross-examination that in the present case the death due to asphyxia because of allergic shock or many other things cannot be ruled out.
16 It is pertinent to note that prosecution has not been able to bring on record that the deceased was not suffering from any of the possible symptoms which are deposed to by this witness. Even there is no evidence to show that the deceased was also not having any kind of allergy. The ultimate and clinching admission given by the Medical Officer has completely washed out the prosecution case as to the homicidal death of the deceased. On the contrary, the possibility of accidental death is also not wholly ruled out by the medical evidence on record.
17 In the case of Subramanium vs. State of Tamilnadu and Another[1] the Hon'ble Supreme Court has held that when death due to asphyxia was not coupled with the marks of violence 1 (2009) 14 Supreme Court Cases 415 avk 10/21 on the body of the deceased, it would be difficult to convict the accused-husband of the murder of his wife.
18 In the present case, the prosecution has come up with a positive case that the deceased was suffocated by throttling and further suffocated by means of pillow and chaddar. It is also to be noted here that according to the prosecution the pillow and chaddar was recovered at the instance of A-2 during the course of investigation by PW10 Investigating Officer, that too on 14th August 1996. There is no other evidence on record to show that the pillow and the chaddar were used by the respondents-accused to cause the death of the deceased. Thus, the said positive case of homicidal death sought to be made by the prosecution is clearly not proved.
19 The medical evidence on the record is not conclusive and there are doubts emerging from the record. Needless to say and having regard to the critical analysis of the evidence of Medical Officer, a clear finding regarding the nature of death avk 11/21 being homicidal, cannot be given in the facts and circumstances of this case, in the absence of clinching evidence. To this extent, in our considered opinion, the finding of the learned trial Court is just and proper and needs to be sustained.
20 The present case, admittedly, is based on circumstantial evidence. In such type of case, circumstance from which conclusion of the guilt is to be drawn should in the first instance be fully established and all the facts so established should also be consistent with only one hypothesis i.e. the guilt of the accused.
21 In Ramreddy Rajesh Khanna Reddy Vs. State of A.P., (2006) 10 SCC 172, the Hon'ble Supreme Court again considered the case of conviction based on circumstantial evidence and held as under: