Supreme Court of India
JAVED ABDUL RAJJAQ SHAIKHversusSTATE OF MAHARASHTRA
- Citation
- 2019 INSC 1210
- Decided
- 6 November 2019
- Disposal
- Dismissed
- Bench
- SANJAY KISHAN KAUL
Holding
The evidence establishes that the appellant alone throttled his wife, justifying his conviction under Section 302 IPC, and the appeal is dismissed.
Summary
The appellant, Javed Abdul Rajjaq Shaikh, was accused of murdering his wife by throttling her after demanding half tola gold, money and a dress. The trial court convicted him and three co‑accused under Section 302 read with Section 34 of the IPC and also under Section 498A. The High Court acquitted the co‑accused and convicted the appellant only under Section 302 IPC. On appeal, the Supreme Court examined the medical evidence, which showed injuries consistent with throttling and a provisional death certificate dated the day of the post‑mortem, and rejected the theory of hanging. The Court also considered the legal principle that when co‑accused are acquitted, the remaining accused must be proved to have acted alone; the evidence satisfied this requirement. Consequently, the Court upheld the appellant’s conviction under Section 302 IPC and dismissed the appeal, ordering him to serve the remaining sentence.
Issues considered
- The propriety of convicting the appellant under Section 302 IPC alone when the original charge was under Section 302 read with Section 34 and co‑accused were acquitted.
- Whether the death was caused by throttling (homicidal) or by hanging (suicidal) based on post‑mortem and medical evidence.
- The impact of the discrepancy between the post‑mortem report date (25‑08‑2005) and the provisional death certificate date (10‑03‑2005) on the reliability of the medical findings.
- The applicability of Section 498A IPC to the appellant in view of the evidence of cruelty.
- The relevance of the room height and spot panchnama in disproving the hanging theory.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 302, s. 34, s. 498A
Subjects
murderthrottlingcustodial deathSection 302 IPCSection 34 IPCSection 498A IPCpost‑mortemmedical jurisprudencecircumstantial evidenceappeal
Judgment
30 [2019]
SUPREME COURT 14 S.C.R. 30
REPORTS [2019] 14 S.C.R.
A JAVED ABDUL RAJJAQ SHAIKH
v.
STATE OF MAHARASHTRA
(Criminal Appeal No. 1181 of 2011)
B NOVEMBER 06, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Penal Code, 1860 – s.302 r/w. s.34 and s.498A – Murder –
Prosecution case was that the appellant and the other accused
committed murder of the wife of the appellant by throttling her –
C
They were charged u/s.302 r/w. s.34 – Besides, they were also
charged u/s.498A – Trial court convicted all the accused for offences
u/s.302 r/w. s.34 and s.498A – High Court acquitted all the accused
of all the offences except the appellant, he was convicted u/s.302 –
Father of the victim/deceased alleged that the accused were
D maltreating victim and were demanding half tola gold, dress and
Rs.5000/- for business purposes – Appellant contended that when
the prosecution failed to establish the guilt of the other accused, in
the circumstances, it must be taken that prosecution also failed to
establish the case against the appellant u/s.302 simpliciter – It was
further contended that victim had committed suicide by hanging –
E
Held: PW-4 deposed that few days before the incident appellant
visited her and demanded half tola gold, money and further
threatened to kill his wife in case of non-compliance with his demands
– PW-3-father of the victim also spoke of the threat as conveyed by
PW-4 and the same was believed by the two Courts – Further, High
F Court rightly concluded that appellant and his wife had a separate
room in the house and death had taken place around 3:30 a.m. in
the morning, therefore there was a custodial death in which the
appellant alone can be implicated – Both the Courts noted from the
spot panchnama that the height of the room in which victim had
died was just 5ft 10 inches and it was again rightly concluded by
G
them that the theory of hanging was incompatible by a person of
normal height or even if the height is 5ft – Further, a provisional
death certificate was issued by two doctors stating probable cause
of death was acute cardio respiratory arrest secondary to acute
H
30
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 31
asphyxia, secondary to throttling and provisional death certificate A
corroborated the postmortem report – Therefore, evidence on record
clearly supported the case of throttling – No merit in the appeal –
Appellant directed to serve the remaining sentence.
Medical Jurisprudence – Hanging, strangulation and
throttling – discussed. B
Dismissing the appeal, the Court
HELD : 1. 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 C
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.
[Para 38] [55-D] D
2. Another circumstance 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 E
High Court is that by that time the appellant would be with his
wife. This cannot be described as manifestly erroneous.
[Para 39] [55-E-F]
3. 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 F
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
the other doctor. 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, this
Court notice that on said date 10.3.2005, there is a provisional G
death certificate which has been issued, according to P.W.1 him,
to the police immediately. It is in the handwriting of the second
doctor. He deposes that they have both signed on it and the
H
32 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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. [Para 41] [55-H;
56-A-C]
B
4. It is inter alia certified by the two doctors in the
provisional death certificate that they have done the post mortem
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
C 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. 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 reason for the
D 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 second doctor is the Medical Officer of Primary Health
Centre, and it is his non availability after the content were entered
in the Post Mortem report that led to report being delayed.
E Though there is a gap, this Court finds 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. [Para 42] [56-E-H]
5. As far as the injuries in the Inquest report not being
F 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
G 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 which are alleged to have been noted in
the Inquest not being noted in the post mortem note. [Para 43]
[57-A-B]
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 33
Sawal Das v. State of Bihar (1974) 4 SCC 193 : [1974] A
3 SCR 74 ; Sukhram s/o Ramratan v. State of Madhya
Pradesh (1989) Suppl. 1 SCC 214 ; Krishna Govind
Patil v. State of Maharashtra AIR 1963 SC 1413 :
[1964] SCR 678 – referred to.
Case Law Reference B
[1974] 3 SCR 74 referred to Para 6
1989 Suppl. (1) SCC 214 referred to Para 6
[1964] SCR 678 referred to Para 35
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal C
No. 1181 of 2011.
From the Judgment and Order dated 23.07.2008 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Criminal Appeal
No. 641 of 2006.
D
D. N. Goburdhan, Adv. for the Appellant.
Anoop Kandari, Nishant Ramakantrao Katneshwarkar, Advs. for
the Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J. E
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 F
read with Section 34 of the IPC. This is besides being charged under
Section 498A of the IPC. The Trial Court 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 G
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.
H
34 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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 deceased lodged a complaint wherein it was
B 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 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
C 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
D 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
E 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 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.
F 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.
G
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
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JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 35
[K. M. JOSEPH, J.]
to 4, the accused cannot thereafter be convicted. He drew our attention A
to the judgment of this Court in Sawal Das v. State of Bihar1 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 B
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 C
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 possibility that the post-mortem report, in fact, may be D
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. E
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 F
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.”
G
“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.”
1
(1974) 4 SCC 193
2
1989 Suppl. (1) SCC 214 H
36 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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
B
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-
C 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 allegedly performed. He would submit that
D
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
E 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
F 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 report
was given on the date of the post-mortem, i.e., on 10.03.2005.
G 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;
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JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 37
[K. M. JOSEPH, J.]
(3) Non-disclosure of death by the appellant to the complainant A
(father of the deceased);
(4) False evidence of accused of hanging;
(5) Inquest panchnama;
(6) Spot panchnama. B
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 deceased if the C
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 D
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 E
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.
13. Exhibit 24 is enlisted to show that the appellant brought the
dead body before the doctor. Evidence of the complainant (PW-3) and F
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. G
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
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38 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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 statement was made regarding the death of the
deceased by hanging which is contrary to the medical evidence.
B 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
C 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
D 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 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
E 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
F 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
G 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
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
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 39
[K. M. JOSEPH, J.]
the wife of the fourth accused (sister-in-law) of the deceased had A
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.
B
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 C
leading a happy married life. The following part of the cross 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, D
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’ E
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 F
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 explain their conduct. The High Court
found it difficult to believe that there was a persistent demand from all G
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
H
40 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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
B
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 their motive, the High Court proceeds to
find that the motive is not proved as against accused 2 to 4 in as strong
C 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
D
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
E 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 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
F
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
G 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
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 41
[K. M. JOSEPH, J.]
by the deceased who is obliged to offer explanation for death is a A
circumstance which strengthens the chain of circumstantial evidence.
It is accordingly that the 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
B
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 C
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 D
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. E
B] Pleura.
C] Larynx, trachea and bronchi
1. Subcutaneous tissue over both lateral aspect of both side
swollen and subcutaneous haemorrhage present. F
2. Both sternomastoid muscle crushed and severe haemorrhage
present beneath it.
3. Thyroid cartilage crushed laterally on both sides more on
left side.
G
4. Cricoid cartilage crushed on both sides.
5. Multiple small clots of blood seen around the laryangeal
cartilages.
D] Right Lung-Both lung congested.
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42 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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.”
B
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
C of death, it is written Acute Cardio 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
D 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
E 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
F
ante-mortem injuries. These injuries occurred due to throttling by 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
G 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
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 43
[K. M. JOSEPH, J.]
probable by pressing the mouth by hand. Paragraph 7 and 8 of the PW1 A
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 B
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.”
He agrees with the proposition given by Modi’s Medical
Jurisprudence, 22nd edition at page no.333 “Bruises or contrusion injuries C
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 D
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 E
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 F
there are marks of violence. He also 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 G
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.
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44 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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
B 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 in case of hanging and suicidal death. He issued Exh.
C 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
D 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.
E 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
F was brought, it had 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
G 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
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 45
[K. M. JOSEPH, J.]
occur in the case of hanging. He also deposed that it is not true to A
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.
B
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 C
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 D
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 cross examination E
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 F
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- G
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
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46 SUPREME COURT REPORTS [2019] 14 S.C.R.
A mark are occurred on the basis of smoothness and 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
B
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
C 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
D
such fracture cannot occur. By using hard and 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,
E as follows:
Hanging Strangulation
1. Most suicidal. 1. Mostly homicidal.
2. Face-Usual pale and 2. Face-Congested, livid and
F 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.
G elongated in fresh bodies.
5. External signs of asphyxia 5. External signs of asphyxia,
usually not well marked. very well marked (minimal if
death due to vasovagal and
carotid sinus effect.
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 47
[K. M. JOSEPH, J.]
6. Ligature mark-Oblique, 6. Ligature mark-Horizontal or A
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.
B
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.
8. Subcutaneous tissues 8. Subcutaneous tissues under the
Under the mark-White, mark-Ecchymosed. C
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. D
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 E
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- F
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 G
Not present. Present.
23. As to what is the distinction between strangulation and throttling
is also dealt within the self-same work:
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48 SUPREME COURT REPORTS [2019] 14 S.C.R.
A “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
B means without suspending the body.
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
C (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
D 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
E 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
F 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 not noticed saliva. In cross examination also
G 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.
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 49
[K. M. JOSEPH, J.]
25. P.W.1, it is true, has opined that in the case of hanging, eyes A
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 B
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 probably by pressing the neck by using fingers C
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 D
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 E
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
muscle. It is one of the largest and most superficial cervical muscle F
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 G
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
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50 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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.
B 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
C 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.
D
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 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
E 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
F 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
G 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 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
H neck, is only rarely found in the case of hanging whereas injury to the
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 51
[K. M. JOSEPH, J.]
muscle of the neck is common in strangulation and that the sternomastoid A
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 B
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 further says that bruising is itself C
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. D
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 E
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 true but the further inference
sought to be drawn by the appellant that it means that the appellant was F
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 G
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.
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52 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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 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
B
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
C 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
D 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
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
E 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,
F 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
G 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
3
H AIR 1963 SC 1413
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 53
[K. M. JOSEPH, J.]
of the High Court, learned counsel for the State attempted to A
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 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
B
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 C
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 D
in Sawal Das v. State of Bihar4 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, his father and step mother under Section E
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 F
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 G
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
4
1974 (4) SCC 193 H
54 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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 singly and separately convicted under
Section 302, Indian Penal Code simpliciter.”
B 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
C 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
D 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
E 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 have throttled the deceased.
This was pure conjecture after eliminating the defence case of
F 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
G 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)
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 55
[K. M. JOSEPH, J.]
37. In Sukhram case (supra) two accused persons were convicted A
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 and alternatively under Sections 302 read with 34 IPC and
B
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 C
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 D
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.
39. Another circumstances which is found by the High Court is E
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. F
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 G
issued. He further says, it is not true to say that he has prepared the PM
note on 25.8.2005.
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
H
56 SUPREME COURT REPORTS [2019] 14 S.C.R.
A 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,
B
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
C of death is known after post-mortem they immediately issued the
provisional death certificate. It can be understood as follows:
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-
D 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
E 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
F 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 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
G 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.
H
JAVED ABDUL RAJJAQ SHAIKH v. STATE OF MAHARASHTRA 57
[K. M. JOSEPH, J.]
43. As far as the injuries in the Inquest report not being noticed in A
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
B
to the death being caused by throttling as opined by the doctor. Much
may not turn on the injuries 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. C
Ankit Gyan Appeal dismissed.
D
E
F
G
H
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