ORDER
S. Radhakrishnan, J.
1. Heard all the learned Counsel at length.
2. This is a writ petition tiled by the sister of the deceased person by name Kantilal Manikchand Dhadiwal. The main reliefs sought in the petition are (a) to call for the record and proceedings of Sessions Case No. 151 of 1986. As the Sessions Case No. 151 of 1986 has already ended in an acquittal on 25th August, 1986, nothing
survives in this prayer. The learned Counsel for the State also informed us that there is no appeal filed against the said acquittal order dated 25th August, 1986. By prayer (b) of this petition, the petitioner seeks a relief that respondent No. 1 State to institute appropriate criminal proceedings against respondent Nos. 2, 3 and 4 for having failed to perform their duties in accordance with law. By prayer (c) the petitioner seeks a relief of quashing the order of the learned Sessions Judge in Sessions Case No. 151 of 1986, rejecting the application of the petitioner to include respondent Nos. 3 and 4 as co-accused. As the aforesaid Sessions Case No. 151 of 1986 has already ended in an acquittal this prayer also does not survive. By prayer (d), the petitioner seeks a relief of quashing the order of learned Judicial Magistrate, First Class, Shirur thereby the proceedings against respondent Nos. 3 and 4 were closed. By prayer (e), the petitioner seeks a relief for institution of proper proceedings against respondent Nos. 3 and 4 under sections 167, 191, 192, and 201 of the Indian Penal Code.
3. To understand the controversy the basic facts are set out hereinafter-
It appears that the brother of the petitioner i.e. Kantilal Manikchand Dhadiwal had left his home on 30th June, 1985 and thereafter he was missing. On 3rd July, 1985, a dead body of an unknown person was found in a well near the Market-yard at Shirur. When the police were informed of the same, inquest Panchnama held by respondent No. 4 herein, viz. Head Constable Maruti Tukaram Chavan, and the aforesaid body was retrieved from the well. At that time the photographs were taken of the said dead body and inquest Panchnama was prepared by the said respondent No. 4 head Constable Chavan which is Exh. 54 in the records before the Trial Court. Thereafter on 4th July, 1985, a post-mortem was performed on the said dead body of the unknown person by respondent No.3 herein namely Dr. Mahadeo J. Nagargoje. The said post-mortem report notes are marked as Exh. 55 in the Trial Court record. On 5th July, 1985, some Muslim from Ahrnednagar claimed the said unknown dead body as being that of Nazir Bashir Shaikh and took all the articles alongwith the dead body of the said Nazir and buried the said dead body of Nazir at Shirur on 5th July, 1985.
4. In a most dramatic manner on 6th July, 1985 Nazir Bashir Shaikh appeared in person and, therefore, it turned out that the said body was really not that of Nazir Bashir Shaikh. Thereafter on 8th July, 1985 the present petitioner being the sister of deceased Kantilal Manikchand Dhadiwal lodged a complaint before the police by way of a missing complaint. On the basis of the afore said complaint, ultimately on 11th July, 1985, a dead body was exhumed and Panchnama in that behalf was prepared which is marked as Exh. 25 in the Trial Court record. The said exhumation started at 8.30 a.rn. and was completed at 11.15 a.m. After the said body was exhumed on 11th July, 1985, a post-mortem was ordered on 11th July, 1985, and the same was conducted by Dr. Laxrnikant Bade. The second post mortem report notes dated 11th July, 1985 are at Ex. 41 in the Trial Court record.
5. On 26th July, 1985, the F.I.R. was lodged by the Police Sub-Inspector Budhiwan. Based on the same, prosecution was initiated before the learned J.M.F.C., Shirur. On 11th March, 1986 the prosecution filed an application before the said J.M.F.C. for discharge of respondent Nos. 3 and 4 in this petition and one Ravi Deokule. The application was granted by the learned Magistrate and all the three were discharged on 17th March, 1986. The petitioner herein did not challenge the order of discharge.
6. On 20th August, 1986 the present petitioner had filed an application in Sessions Court under section 319 of the Code of Criminal Procedure for inclusion of respondent Nos. 3 and 4 as accused persons. It may be noted here that the petitioner herein was the prosecution witness No. 7 in the above Sessions Case No. 151 of 1986. With regard to the discharge application the State filed a reply on 21st August,
1986 pointing out to the Court that respondent Nos. 3 and 4 herein have already been discharged by the learned Magistrate on the ground of insufficient evidence as far back as on 11th March, 1986. The present respondent Nos. 3 and 4 also filed a reply on 21 st August, 1986 objecting to the application filed by the petitioner for the reliefs under section 319 of the Code of Criminal Procedure. Ultimately, the learned Sessions Judge by a detailed order on 22nd May, 1986 rejected the aforesaid application filed by the petitioner for inclusion of respondent Nos. 3 and 4 as accused in the said Sessions Case No. 151 of 1986. On the very same day, the petitioner also applied before the learned Sessions Judge for stay of the Sessions trial in Sessions Case No. 151 of 1986 which was rejected by the learned Addl. Sessions Judge.
7. Ultimately on 25th August, 1986 the learned Addl. Sessions Judge, Pune has after full-fledged trial and after hearing all the arguments, by a detailed judgment acquitted all the accused in the said case. The learned Addl. P.P. who is appearing before us informed us that the State has not filed any appeal against the aforesaid acquittal order dated 25th August, 1986 passed by the learned Addl. Sessions Judge, Pune acquitting the accused. The learned Addl. Public Prosecutor also informed us that no revision has also been filed against the aforesaid order.
8. The present petition seeking the aforesaid reliefs has been filed on 22nd October, 1986.
9. The learned Counsel for the petitioner in support of the reliefs sought by the petitioner, submitted that the petitioner in her deposition before the Sessions Court has stated that she was able to identify the body which was exhumed on 11th July, 1985 as that of her brother. The main argument of the learned Counsel for the petitioner is that the post mortem conducted on 4th July, 1985 by respondent No.3 was bogus and has been deliberately concocted so as to protect the accused. The learned Counsel for the petitioner also submitted that respondent No. 3 has deliberately shown cause of death wrongly as death due to “respiratory failure due to Asphyxia as a result of drowning” whereas the brother of the petitioner was murdered and the said post mortem report dated 11th July, 1985 correctly discloses the cause of death as “Cause of death is shock as a result of injuries”. Therefore, the contention of the learned Counsel for the petitioner is that respondent No. 3 has tried to shield the accused and has prepared a false post mortem report on 4th July, 1985. Similarly, the learned Counsel for the petitioner also contended that respondent No. 4 has falsely prepared the inquest Panchnama being Ex. 54 before the Trial Court, while removing the unknown dead body from the well on 3rd July, 1985. in the said Panchanama no injuries have been mentioned; no tear marks of the clothes are mentioned and no bloodstains have been mentioned. As such the contention of the learned Counsel is that respondent No.4 has falsely prepared the inquest Panchnama to protect and shield the accused. The learned Counsel for the petitioner also emphasised that two persons by name Sayyed S. Shaikh and Ismaii G. Shah were present at the lime of retrieval of the body from the well on 3rd July, 1985 and they were also present on 11th July, 1985, when the body was exhumed from the graveyard and that the said Sayyed Shah and Ismaii G. Shah had identified the body which was exhumed on 11th July, 1985 as the same body which was buried on 4th July, 1985. The learned Counsel strongly submitted that there are patent dissimilarities and discrepancies in both the post-mortem reports dated 4th July, 1985 and 11th July, 1985. As such the contention was that the first post mortem report has been deliberately prepared to shield the accused person. The learned Counsel also contended that the petitioner was able to identify the retrieved clothes as well as the wrist watch which was recovered after the exhumation of the body on 11th July, 1985. Therefore, the contention was that the body which was
buried on 11th July, 1985, was the same whereas the post-mortem reports defer-one indicating an accidental death and another indicating homicidal death. The learned Counsel strongly contended that the body which was buried on 4th July, 1985 purporting to be that of Nazir Bashir Shaikh was infact that of the petitioner’s brother and, therefore, the said body was exhumed on 11th July 1985 and the second post-mortem was done disclosing homicidal death indicates respondent Nos. 3 and 4 have tried to shield the accused.
10. From all the abovesaid contentions, the learned Counsel for the petitioner strongly contends that it is clear that respondent Nos. 3 and 4 have deliberately prepared a false post-mortem report and inquest Panchanama respectively and accordingly seeks reliefs as mentioned herein above.
11. The learned Counsel for respondent No. 3 Dr. M.J. Nagargoje submitted that the following circumstances would clearly indicate that the post-mortem report dated 4th July, 1985, prepared by his client is true and genuine. The learned Counsel contended that in the said post-mortem respondent No. 3 has come to the conclusion, rightly, that the death had occurred due to respiratory failure due to Asphyxia as a result of drowning. The first circumstance, therefore, relied upon was the inquest Panchnama dated 3rd July, 1987, being Ex. 54 when the body was retrieved from the well, no injuries were noticed and no tear marks of the clothes if noticed ought to have been mentioned, as Panchas were present. The second circumstance relied upon by the learned Counsel is that respondent No. 3 could have very well mentioned Muslim male instead of Hindu male in his report if he had wanted to shield the accused in as much as the deceased was a Hindu whereas he had undergone circumcision according to the evidence of the petitioner. The very fact that he had indicated the unknown dead body to be that of Hindu means it was not the body of the brother of the petitioner who had admittedly undergone circumcision. When respondent No.3 had conducted the post-mortem on the said body, it was an unknown dead body and he categorically mentioned Hindu. That would clearly indicate that the body was not that of the brother of the petitioner. The third circumstance which the learned Counsel relied upon was when the dead body was exhumed on 11th July, 1985, it was in a highly decomposed state. Therefore, it would have been very difficult to identify. In fact, even the identification of the said dead body by the petitioner was merely by clothes and wristwatch and not from any bodily marks. Fourthly, the learned Counsel contended that there was no proof whatsoever that the body which was Sic exhausted on 4th July, 1985 and body which was buried on 11th July, 1985 were the same. Another interesting circumstance, according to the learned Counsel for respondent No. 3 that the present petitioner Madhubala had made complaint regarding her brother being missing only on 8th July, 1985 being Ex. 42 in the Trial Court record; though her brother was missing from 30th June, 1985. Another important circumstance, according to the learned Counsel, is that when the clothes were recovered and identified by the petitioner the clothes were all intact and they had no tear marks of purported knife injuries and they also had no bloodstains. Another important factor, according to the learned Counsel is that the panchanama of the exhumation, being Ex. 25 in the Trial Court record, shows the time taken for such exhumation was from 8.30 a.m. till 11.15 a.m. Whereas the post-mortem was purportedly conducted by Dr. Bade on 11th July, 1985 between 9.40 a.m. and 11.30 a.m. which obviously could not have been possible. Therefore, the learned Counsel contends that this cannot be relied upon.
12. In view of the above circumstances, the learned Counsel for the respondent No. 3 strongly contended that his client had genuinely prepared the said post-mortem report and there was no question of shielding the accused whatsoever and also contends
that the bodies were totally different in as much as the body which was buried on 4th July, 1985, was different from the body which was exhumed on 11th July, 1985 for the purpose of post-mortem by Dr. Bade. According to the learned Counsel for respondent No. 3 both the post-mortem reports very categorically indicate that these two bodies were totally different and as such his client cannot be implicated in as much as !he petitioner herself identified the body which was exhumed on 11th July, 1985, whereas respondent No.3 had conducted the post-mortem of another body on 4th July, 1985.
13. The learned Counsel for respondent No, 3 also argued that the petition for reliefs under section 319 of the Code of Criminal Procedure is not maintainable as trial itself is over now. In this behalf the learned Counsel for respondent No. 3 relied upon a decision of the Apex Court in State of Assam v. Abdul Halim and others, reported in 1993 Supp.(1) Supreme Court Cases 505 wherein in para 6 the Supreme Court has observed as under :
6. “The next question is whether these five respondents should be asked to face
the trial at this length of time. The occurrence should have taken place
before 1974, since the order of the Sessions Judge is dated September 23,
1974. In other words, it was 18 years ago this occurrence had happened.”
In the instant case, the incident had occurred about twelve years back.
14. The learned Counsel for respondent No. 3 contends that no criminal proceedings under section 167 of I.P.C. will tie against respondent No. 3 in as much as there was no material or evidence whatsoever on record to show that respondent No. 3 had any connection with the accused. Similarly, the learned Counsel also contended that no prosecution under section 191 of I.P.C. will lie as none of these ingredients are satisfied in the present case. He also contended that there is no false statement whatsoever in the post-mortem report dated 4th July, 1985 and as such there is no question of any prosecution under section 192 of I.P.C. In this behalf the learned Counsel for respondent No. 3 has relied upon the judgment of the Apex Court in Chajoo Ram v. Radhey Shyam and another, reported in 1971 (1) Supreme Court Cases 774 wherein the Supreme Court has observed as under in para 7 :
“7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to the deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial; it does not reflect the requisite judicial deliberation: it seems to have ignored the fact that the appellant was a panch and authorised to act as such and his explanation was not implausible. The High Court further appears to have failed to give requisite weight to the order of the District Magistrate which was confirmed by the Sessions Judge, in which it was considered
inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order. The subject matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed.”
In the above case, even if there is a case made out, the Supreme Court was of the view that it should be a deliberate and conscious act of perjury. The Supreme Court has also held that in view of the long lapse of time of more than 10 years was not a factor which is not wholly irrelevant for considering the question of expedience of initiating prosecution for the alleged perjury. It may be noted here that in this case, there is a delay of more than 12 years. Similarly, the learned Counsel contended that there is no allegation or material whatsoever that respondent No. 3 had tried to shield the accused as such, no question of any prosecution under section 201 of I.P.C.
15. The learned Addl. Public Prosecutor at the out set submitted that these two bodies viz. the body which was buried on 4th July, 1985, after the post-mortem by respondent No. 3 and body which was exhumed on 11th July, 1985 wherein postmortem was conducted by Dr. Bade were totally different bodies. As such there is no question of any false inquest being prepared by respondent No. 4 or that any false post-mortem report being prepared by respondent No. 3 on 4th July, 1985. In this behalf, the learned Counsel for the State of Maharashtra took us through in detail through both the post mortem reports to point out the patent distinctions in both the post-mortem reports dated 4th July, 1985 and 11th July, 1985, indicative of both the bodies were totally different. The following factors would clearly indicate how they are different.
PATENT DISTINCTIONS IN BOTH THE POST MORTEMS,
INDICATIVE OF BOTH BODIES BEING DIFFERENT.
Most
Mortem
Post
mortem report dt.
report
dated
4th
July, 1985
11th
July 85
1.
CI.9
Page 17
Teeth
(No scars noticed)
Cl.
9 Scar on chin/horizontal noticed after 11 days. Therefore, ought to have
been noticed the first PM report if it was same body.
2.
Cl. 12
Page 17
Maggots
present on left leg, on
Cl.
12 page 23 no Maggots scalp, near both formation ears, on neck.
3.
Cl. 13
Page 17
White
foamy serous fluid oozing through both nostrils and mouth, (indicative of
drowning)
Clause
13 page 23. Reddish fluid oozing from Nostrils. (ndicalive of internal
injuries.)
4.
CL 20,
page 18
CL 20, page 26 Thorax —–
b)
Pleura
Fluid
present in both pleural cavity
—-
c)
Larynix, Trachea
Mucous membrane cogested.
Laryns
not opened during Bron chi 1st PM. However there are no injuries.
d)
Right lung: 230 Gms.
Both
kings congested and semilguistified (indicative of drowning)
Autolysed
weight 240 gms. approx. (not indicative of drowning)
5.
Cl.21
page 19
Abdomen
Distended (indicative of drowning)
Clause
21 page 27. No bloating observed.
6.
Cl.21
page 19
Oesophagus
: Mucous rnembrex conjected drowning)
Clause
21 page 27. Nothing noted
7.
Cl. 21
pg. 19
Stomach:
containing fluid about 300 to 350 cc smelling of alcohol present.
Clause
21, page 27 Incision taken and found empty. Fowl smell present,
8.
Clause 16
page 18
earth
present with in nails of feet and hands (Indicative of drowning)
CL
16 page 24 Upper and lower cyanosis present over nails.
16. From the above detailed analysis, it is very clear that the first body on which post-mortem was conducted on 4th July, 1985, is clearly indicative of death being caused due to drowning or due to Asphyxia whereas the post-mortem report of 11th July, 1985, clearly indicates that the death had occurred due to various knife injuries. Therefore, the contention of the learned Counsel is that both the dead bodies are totally different and as such there is no substance whatsoever in the contentions of the petitioner. The learned Addl. Public. Prosecutor also contended that if Nazir’s relatives could identify the body as that of Nazir on 5th July, 1985, similarly even the petitioner could have mistaken the body that was recovered on 11th July, 1985 to be that of her brother as the body was in a highly decomposed State. Another important factor, that the learned Addl. Public Prosecutor pointed out is that when the body was taken out on 3rd July, 1985, the clothes did not have any blood stains whatsoever or any tear marks on the said clothes. Therefore, the same could have been the body of the petitioner’s brother. The learned Counsel for the State also pointed out that the evidence of the petitioner clearly shows that the petitioner Sic his brother was addicted to alcohol when the first post-mortem report clearly shows that the stomach contained 300 to 350 c.c. fluid and smelling of alcohol was present and that the deceased could have consumed alcohol within 3 to 4 hours prior to his death. This is also indicative of the fact that the first postmortem
report was genuine and body which was exhumed on 11th July, 1985, could not have been that of the petitioner’s brother.
17. After a careful consideration of all the arguments as well as the record and material produced before us we are clearly of the view that there are various factors which are suggestive of the fact that the body on which post-mortem was performed on 4th July, 1985, and the body on which postmortem was performed on 11th July, 1985, were different for the following reasons:
a) When the body was taken out on 3rd July, 1985, in the inquest panchanama being Ex. 54 there is no mention whatsoever of bloodstains on clothes or any tear marks on clothes due to knife injuries.
b) On the contrary, when the clothes were recovered on 11th July, 1985, at the time of exhumation inquest panchanama being Ex. 39 clothes had bloodstains but they were intact i.e. there were no tear marks at all to indicate any knife injuries.
c) The body which was recovered on 3rd July, 1985, was bloated and identified by some Muslims to be that of Nazir wrongly.
d) Similarly the decomposed body which was exhumed on 11th July, 1985 could have also been mistaken by the petitioner to be that of her brother.
e) The first post-mortem report dated 4th July, 1985, clearly indicates that the unidentified body as Hindu male whereas the petitioner in her evidence has categorically stated that her brother had undergone circumcision for medical reasons and in that event the dead body had been that of her brother. Respondent No. 3 would have observed that the body was of Muslim male since the petitioner’s brother had already undergone circumcision. Had respondent No. 3 really known that the body was that of petitioner’s brother and wanted to cover up the murder etc. he would have easily mentioned “Muslim” as there was circumcision. Obviously the unidentified body was not circumcised. Therefore, it could not have been that of petitioner’s brother.
f) The body which was exhumed on 11th July, 1985 was in a highly decomposed state and identify could have been mistaken.
g) The most important indication that the bodies might be different is that there is no evidence whatsoever on record that the body which was buried on 4th July, 1985 and body which was exhumed on 11th July, 1985 were the same dead bodies.
h) The petitioner knew that her brother was missing from 30th June, 1985 but for some strange unexplainable reasons she did not complain to the police till 8th July, 1985.
(i) The exhumation Panchnama Ex. 25 mentions that time taken in exhumation was from 8.30 a.m. to 11.30 a,m. whereas the second postmortem was performed by Dr. Bade between 9.40 a.m. and 11.30 a.m. which was not possible at all.
j) Patent distinction and dissimilarities as pointed out in para 13 hereinabove
clearly indicate that both the bodies were really different.
18. In the aforesaid circumstances, we are of the view that there is no prima facie case made out by the petitioner to initiate any proceedings against the respondent Nos. 2, 3 and 4. Even otherwise it shall not be forgotten that the incident had taken place in the year 1985, and now we are in the year 1997 and it would serve no purpose now to initiate any further proceedings against respondent No. 2, 3 and 4 at this belated stage with no clinching evidence or material.
19. Under the aforesaid circumstances, we are of the view that there is no substance in the petition. The petition is dismissed. Rule is discharged.
20. Petition dismissed.