PETITIONER: MOHD.ZAHID Vs. RESPONDENT: STATE OF TAMIL NADU DATE OF JUDGMENT: 20/07/1999 BENCH: N.Santosh Hegde, G.B.Pattanaik JUDGMENT:
J U D G M E N T
SANTOSH HEGDE, J.
The appellant in the above appeal was charged with an
offence punishable under Section 302 I.P.C. before the VIth
Additional Sessions Judge, Madras in S.C. No. 83/86 who
found him guilty of the said offence and sentenced him to
undergo imprisonment for life. His appeal before the
Division Bench of the Madras High Court in Criminal Appeal
No. 1054 of 1986 came to be dismissed and he is now in
appeal before us by special leave. The prosecution case
stated briefly against the appellant is that he was married
to one Jabeena on 29th January, 1984 and after the marriage
for some time they resided in an independent house. In the
year 1985, Jabeena gave birth to a male child in her parents
house and thereafter the appellant came to live in the house
of his father -in- law Mohd. Ahamed (PW-1) in the house
bearing Door No.22, 11th Avenue, Ashok Nagar, Madras. The
said house contained one bed room in the ground floor which
was occupied by PW-1’s elder daughter and her husband. Out
of the four bed rooms on the first floor, one bed room was
occupied by PW-1 and his wife, the second bed room next to
that was occupied by the appellant and Jabeena with their
child, the third bed room was occupied by two unmarried sons
of PW-1 and the fourth bed room was lying vacant.
On 27.12.1985 at about 6.00 a.m. the wife of PW 1, by
name Maliga Ahamed, (PW-3) heard the continuous cries of
Jabeena’s child, hence, she came to the room of the
appellant and knocked on the door of the room. It is
alleged that the appellant got up and opened the door and on
being asked by PW-3, he gave the child to her and closed the
door of his room. A short while after, it is stated that
the appellant shouted for PW-3 who went to the room of the
appellant, when the appellant pointed out to PW-3 the
bathroom where Jabeena was found lying with the upper part
of her body having become black on account of burning. The
appellant is supposed to have told her that Jabeena suffered
the burns while heating the water on the stove. The further
case of the prosecution is that on hearing the cries of PW
3, PW 1 came to the said room and he also found Jabeena
lying on the floor and when he tried to find her pulse, he
found her to be dead. Immediately, thereafter the family
tried to call a Doctor by name Dr.Aziz Rehman over the phone
but he was not available. It is further alleged by the
prosecution that on the persuasion of the appellant, Jabeena
was given a bath by her mother PW 3 and her eldest sister,
Abeeda Altaf (PW-4) during which time the appellant was
found cleaning the bed and changing the bed-sheet. It is
contended by the prosecution, thereafter, PW 1 along with
his friend Syed Asim went to Kumaran Nagar, Police Station
and gave a report which is marked as Ex. P.1. On the basis
of the said report the Officer In-charge of the said Police
Station who has been examined as PW 10 registered a Crime
No. 981/85 under Section 174 of the Cr. P.C. PW-10 then
sent the necessary report to the concerned authorities. On
coming to know of the incident, the Inspector of Police PW
11 took up the investigation and reached the scene of
occurrence about 9.50 a.m. and prepared an observation
Magazar and scene sketch as per Ex.P-18 and 19. PW 11
thereafter held the inquest of the dead body of Jabeena
(Ext.P-20) and seized MO’s 1 to 4 and 7 to 10. It is the
case of the prosecution that on a request made by PW 1, the
father of Jabeena, who believed that Jabeena had died due to
an accident no post-mortem was conducted and hence PW-11
released the body of Jabeen to PW-.1. On that very day
Jabeena’s body was buried in the Ammeeerunnissa Begum Muslim
Burial ground. The prosecution further states that as per
the religious custom, the third day rites of the deceased
were conducted. After these rituals, it is alleged that the
appellant left the house of PW-1 and went away to his
parental house taking all his belongings with him. The
prosecution further alleges that the behaviour of the
appellant during the third day rites was very peculiar and
was not consistent with that of a caring husband. It was
also stated that the relatives who attended the last rites
as well as the third day ceremony were not convinced that
Jabeena had died due to an accident . Through the evidence
of PWs.1 to 7 prosecution then alleges that the appellant
had earlier demanded money for the purchase of a scooter
which was not given by PW-1, and that his relationship with
Jabeena was not very cordial because of his perverted sexual
habits and also that the appellant was angry the day before
the death due to the fact that he was not told about the
visit of the other family members to Spencer & Company for
the purchase of a washing machine. In view of this
background, PW-1 and his family members doubted the cause of
the death of Jabeena. Therefore, on 3.1.1986 nearly 7 days
after the death of Jabeena, PW-1 approached the Assistant
Commissioner of Police (PW-12) around 7 p.m and gave another
report which is marked as Ex. P.2. Based on the said
report the Assistant Commissioner of Police (ACP) PW-12
requisitioned the file pertaining to Cr.No.989/85 and
changed the cause of death as “suspicious death” and sent
express reports in the form of Ex. P-23 to the Court and
the authorities concerned. PW-12 thereafter requisitioned
as per Ex. P-14 the services of Madras City Additional
District Magistrate for exhumation of the dead body of
Jabeena and for holding a further inquest. PW-12 also
requisitioned the services of Medical Officers at the time
of exhuming the body and also for conducting the post-
mortem examination. On 4.1.86 the concerned Tehsildar was
informed of the fact that the post-mortem would be conducted
at the burial ground itself. Thereafter, in the presence of
witnesses and Panchayatdars the body of Jabeena was exhumed
between 4.15 and 5.45 P.M. and the inquest was conducted by
the Tehsildar PW-9. The post-mortem itself was conducted by
a Medico Legal Expert (PW.8) with the help of one
Dr.Balakrishna Rao (not examined). PW 8 was then the
Additional Professor of Forensic Medicine, Madras Medical
College and the said Dr. Balakrishna Rao was an Assistant
Professor in the same college. The post-mortem report (Ex.
P.12) along with the inquest report was dispatched by PW-11
to the concerned authorities which ultimately reached the
Commissioner of Police on 26.2.1986. Based on the post-
mortem and inquest reports, the Commissioner of Police
altered the Section of the offence in the concerned record
to Section 302 I.P.C. Based on the investigation conducted
thereafter, the prosecution charged the appellant of having
committed the murder of Jabeena. Before the Trial Court the
prosecution examined 12 witnesses and produced 25 exhibits
including Ext.P.12, the post-mortem report. Both the Trial
Court as well as the High Court accepted the case of the
prosecution and found the appellant guilty of the offence
charged against him. The High Court while dismissing the
appeal of the appellant and affirming the judgment of the
Trial Court has accepted as many as 14 circumstances pointed
out by the prosecution against the accused which are as
follows : “(1) Motive evidence plus the temperament/conduct
of the appellant at various stages. (1a) Appellant and the
deceased were seen last together inside the bed room, the
bolt of which room from inside, was opened by the appellant
to help PW 3 to take away his crying son plus facial
expression of the appellant anguished and terrifying at that
juncture; (2) Appellant having shouted for help calling his
mother-in-law, a little later after she left, with her
grand- son. The conduct of the appellant pushing the
unbolted bath room door and pointing out the fallen down
deceased inside the bath room with her hands on her back and
burn injuries on her fore-head; cheeks, ears, neck and
chest together with burned cloth sticking on to her right
thigh and left knee; (3) The availability of M.O.5 stove
and M.O. 6 stand with a brass vessel and bucket inside the
bath room of the appellant, though these articles would
normally be found in the kitchen; (4) The reply of the
appellant, when PW.3 questioned him as to what had happened,
that the deceased had lifted boiled water and poured in into
the bucket, before filling more water into the vessel, to
boil it over again, in which process, accidentally her saree
caught fire; (5) P.W.1 having found the body of his
daughter chill without possibility of feeling the pulse,
together with injuries already noticed, and the position in
which the body was lying. Chillness of the body was
sufficient proof, that death must have occurred quite some
time ago and not at or about the time when PW. 3 went out,
with the infant; (6) The conduct of the appellant in having
informed PW 4 when questioned, that the deceased had slipped
and fell down resulting in her saree getting engulfed in
flames. This version is contrary to what the appellant had
told to his mother-in-law; (7) The conduct of the appellant
in insisting that Jabeena should be given a bath, since she
was not clean and it was a Friday and successfully
persuading both the witnesses to accede to this unusual
request; The conduct of the appellant in refusing to help
PWs. 3 and 4 to clean up his wife, stating that the link
between him and his wife had got snapped. (8) The activity
of the appellant in cleaning the bed room by removing old
sheets and replacing them with fresh sheets within the
short-while when the body of his wife was taken inside the
bath room, in pursuance of his request. The subsequent
conduct of the appellant in cleaning the bath room and
coming out fresh after bath, soon after his wife was laid on
the cleaned bed; (9) The information furnished by PWs 3 and
4 to PW. 1 when the latter scolded them for having bathed
the body when it was a police case, that they indulged in
such activity on the cringing request of the appellant;
(10) Seizure of M.Os. 1 to 10 from the bath room and the
dead body; (11) The conduct of the appellant creating an
impression that the death of his wife was accidental which
was implicitly believed, leading to a request not to send
the body for post-mortem; (12) Conduct of the appellant on
the 3rd day ceremony, his happy movements and care free
eating, smoking and singing habits noticed by P.W.5. The
further conduct of the appellant duping PW 5 as though he
was looking for the Quran inside the Godrej bureau, when the
Quran was easily available at its usual place and needed no
search. Appellant leaving the house of his father-in- law
with his clothes soon after the 3rd day; (13) The interest
exhibited by the appellant in a film exhibited in the
Television relating to an Army Officer getting himself
equipped with information to murder his wayward wife by
compressing her neck without the possibility of her raising
her voice to attract attention. Appellant having keenly
visited a picture – house to see the same film, when it was
screened. The connection between the manner of murder in
the film and the death of deceased Jabeena; and (14)
Medical evidence indicating homicide and excluding possible
suicide;”
A careful perusal of these circumstances would show
that circumstances 1 to 13 either taken together or
independently would not assist the case of the prosecution
to prove conclusively that the death of Jabeena is homicidal
and is not either suicidal or accidental. As observed by
the High Court itself the sheet anchor of the prosecution
case is the medical evidence which is noticed as the 14th
circumstance by the High Court. If the medical evidence is
accepted, as has been done by the courts below, then reasons
1 to 13 would provide materials to establish that it is the
appellant and the appellant alone who could have caused the
death of Jabeena. On behalf of the appellant, it is
strongly contended by Mr. U.R. Lalit, learned senior
counsel, that the prosecution has not been able to establish
that Jabeena’s death was homicidal. It is contended, at any
rate the evidence of PW-8 creates a reasonable doubt as to
the real cause of death of Jabeena. It was further
contended that from the material available at the time of
the post-mortem, it would not have been possible for a
doctor to establish the real cause of death in view of the
high stage of decomposition of the body. On behalf of the
State, Mr. R. Mohan, learned senior counsel, supported the
judgments of the courts below and contended that there was
no reason whatsoever why the evidence of PW- 8 should not be
accepted. Since the entire prosecution case rests on the
evidence of PW-8, we will examine the said evidence in
detail. During the course of the post mortem examination,
PW- 8 noticed high decomposition of the body. She noted the
following injuries on the dead body :
1. Singeing of scalp hair over middle of frontal and
parietal regions 8 cm x 6 cm.
2. Reddish black discolouration of skin over face,
front of chest, left breast, right shoulder, right side of
abdomen front of upper and middle third of left leg, front
of left leg, front of left thigh, inner aspect of left thigh
and upper, middle and lower part of back. 3. Deep
splitting of the skin over lower part of right breast and
upper thrid of front of right thigh exposing the underlying
fatty tissue.
4. Blackening of skin over front and both sides of
neck, the skin on the back of the neck did not show any
discolouration. The skin on front of neck showed a
horizontal and uniformly hardened and thickened area. 1 «
cm. In width, 0.5 cm in thickness and 0,5 cm in length,
situated 5 cms. below the right ear lobe on right side of
front of neck, 6 cm, below the left ear lobe on left side of
front of neck. On dissection of the tissue of neck, a
contusion reddish black in colour 4 cm x 3 cm was seen on
right side over the right side of hyoid bone and a contusion
3 cm x 2 cm on left side near the left lobe of thyroid.
5. Dark reddish black contusion 14 cm x 12 cm x 1 cm
was seen on front of right side of chest. 6. There were no
burns on left shoulder below the neck and back of neck,
upper part of right breast middle of chest between the
breasts, left side of abdomen, genitals, outer aspect of
chest and abdomen on both sides, both upper and lower limbs
fully, middle and lower part of right thigh, both ankles and
feet, buttocks and back of both lower limbs fully.”
On an internal examination of the body, PW-8 noticed
that the lungs were decomposing. Mucosa reddish
black in colour was found in the trachea. Very teeth. few
black soot particles were seen inside the Hyoid bone was
intact. Stomach was empty. Mucosa in the stomach did not
show any discolouration.
Liver, spleen and kidney were decomposing. Bladder
and Uterus were empty. Brain was found liquefied.”
On the basis of the above observations, PW-8 recorded
her opinion of Jabeena’s death as follows :- “Died of
asphyxia and cerebral anoxia due to cumulative effects of
compression of neck and burns.”
In her oral evidence, she opined that injury No.4
noticed by her could be caused by compression of neck with
minimal pressure and the said injury, according to her, was
ante-mortem in nature. She opined that the hyoid bone was
not fractured because the pressure on the neck was minimal.
She further opined that injury Nos.1 to 3 and the changes
found in the trachea along with the presence of soot
particles inside the trachea could have been due to burns
and that these burns would have been ante-mortem. She was
very specific that neither the injury to the neck nor the
burn injuries could have been accidental or suicidal. Thus,
it is seen that as per the evidence of PW-8, there are two
causes of death, namely, asphyxia and cerebral anoxia which
cumulatively caused the death and this was due to
compression of neck and burns. During her cross-examination
the defence has suggested to her, that the contusion noticed
by her as injury No.4, was not caused by external pressure
but due to swellings that were caused during the process of
decomposition of the body. Hence, she could have wrongly
concluded that the death was partly due to asphyxia. To
establish that there was a reasonable possibility of PW-8
mistaking the swelling caused by decomposition as
contusions, the defence confronted her with certain
well-recognised text-books on the subject. Firstly, PW-8
was confronted with the statement appearing in the text
“Lyon’s Medical Jurisprudence” wherein, at pp. 149 and 150
(1953 Edn.), the following statement was found : “Other
effects of pressure of gas are : “Distension of the tissues
of the neck resulting in accentuation of the natural groove
and frequently giving rise to appearances suggestive of
strangulation.” PW-8 accepted the fact that “Lyon’s Medical
Jurisprudence” was one of the authoritative books on the
subject. But, she still disagreed with the statement
extracted from the said book without assigning any reasons.
However, she did not support her opinion with any other
acceptable material. This opinion of PW-8 has to be
scrutinised in the following background : Firstly, the fact
that she had not seen any external injury corresponding to
the internal contusion which, according to her, was the
basis of her opinion that asphyxia by strangulation was
caused. Secondly, in view of the specific statement made by
her in the course of her evidence that she had not seen any
ligature marks. Thirdly, that the hyoid bone which
ordinarily would be damaged if external pressure is applied,
was found to be intact. During further cross-examination,
PW-8 recognised Keith Simpson as a world authority on
medical jurisprudence. But she did not agree with the said
Keith Simpson’s opinion that Parikh’s book is a
comprehensive and outstanding book on reference for court
work. This reference to Keith Simpson’s opinion in Dr.
Parikh’s book was put to PW-8, to suggest to her that if the
hypostasis extends to the head, it may be mistaken as a
violence to the neck or smotherings as found at page 159 of
Dr. Parikh’s text-book (4th Edn. 1995). She disagreed
with this statement as found in Parikh’s book, solely based
on her personal experience and not supported by any other
authority. While so disagreeing with Parikh’s book, she
insisted on stating that the horizontal and uniformly
hardened and thickened area mentioned by her as injury No.4
must be due to ligature, even though according to her post
mortem report and evidence in the court, she had not seen
any ligature marks on the body of Jabeena. The defence has
further confronted PW-8 with the statement found in the book
“The Essentials of Forensic Medicine” by Dr. K.S. Narayana
Reddy to establish the fact, that on decomposition of a
body, the gas collects in the subcutaneous tissue and
becomes emphysamatous. This would then create a false
impression of ante mortem obesity (stout). PW-8 disagreed
with this opinion also, without supporting her opinion on
the basis of any other authority. From the statements found
in various text-books referred to above, notwithstanding the
disagreement of PW-8, we will have to conclude that there is
a possibility of the existence of swellings occurring in a
decomposing body, similar to the one noticed by PW-8 which
give rise to appearances suggestive of strangulation. There
is a reasonable possibility that the contusions noticed by
PW-8 are those swellings which could have been caused due to
decomposition of the body of Jabeena. Therefore, these
suggestions of the defence made to PW-8 cannot be lightly
brushed aside. More so, in the background of the fact that
PW-8 had conducted the post mortem on Jabeena’s body nearly
8 days after it was buried, and admittedly even according to
PW-8, the body of Jabeena had decomposed considerably at the
time of the post mortem examination. This is coupled with
the fact that she has admitted in her evidence that she has
no other authoritative text to contradict or support her, as
against the statements found in the text books like the
“Lyon’s Medical Jurisprudence”, Parikh’s text book on
Medical Jurisprudence, The Essentials of Forensic Medicines
by Dr. K S Narayana Reddy. The second cumulative cause of
death as per the opinion of PW-8 is cerebral anoxia caused
due to burns. It is true that PW-8 noticed certain burn
marks on the face and chest of Jabeena. It is seen from the
text books and from the evidence of PW-8 that anoxia of the
brain is caused due to lack of supply of oxygen to the brain
which could be due to burning as found in the body of
Jabeena. PW-8 in her statement before the court stated thus
: “Cerebral anoxia means the stoppage of blood supply to
the brain. In the event of cerebral anoxia in the post
mortem examination except the pale appearance of the brain,
there will not be any other change in the brain. As the
brain had been liquefied in this case, it cannot be stated
whether brain becomes pale or not. There was no other sign
by which I could say that there was cerebral anoxia.
Cerebral anoxia in my opinion or conclusion based on my
observation and findings in the post mortem examination. It
is not correct to say that no opinion of cerebral anoxia
could be given or arrived at in the case of liquification of
the brain.” A cautious reading of this part of PW-8’s
evidence shows in one part PW- 8 admits that the one and
only method by which a medical examiner can conclude that
cause of death was due to cerebral anoxia is by noticing
pale appearance of the brain. She also specifically admits
that there will not be any other change in the brain in the
case of cerebral anoxia and since the brain had become
liquefied, it cannot be stated if the brain had become pale
or not. She is also specific in her statement that there
was no other sign by which she could say that was cerebral
anoxia. Stopping for a while at this stage and examining
PW-8’s evidence, one finds that at the time of the post
mortem examination, Jabeena’s brain had liquefied and there
was no way by which PW-8 could have noticed the paleness in
the brain. However, in the latter part of her evidence, she
deviates from her earlier opinion and states that it is not
correct to say that no opinion of cerebral anoxia could be
given or arrived at in the case of liquification of the
brain. These two statements are diametrically opposed to
each other and we find it rather difficult to accept this
part of her evidence which is so self-contradictory. In our
view, the opinion of PW-8 that the cause of death as
recorded by her is due to the cumulative effect of asphyxia
and cerebral anoxia, is rather difficult to accept. We are
aware of the fact that sufficient weightage should be given
to the evidence of the doctor who has conducted the post
mortem, as compared to the statements found in the text
books, but giving weightage does not ipso facto mean that
each and every statement made by a medical witness should be
accepted on its face value even when it is
self-contradictory. This is one such case where we find
that there is a reasonable doubt in regard to the cause of
death of Jabeena and we find it not safe to rely upon the
evidence of PW-8, solely for the purpose of coming to the
conclusion that Jabeena’s death is proved by the prosecution
to be homicidal. We have examined the evidence of PWs.1 to
7 who speak of the factum of the relationship of the
appellant with Jabeena and various possible motives the
appellant could have had for causing the death of Jabeena.
First of all, we should notice the fact that on the date of
the death of Jabeena, none of these witnesses entertained
any doubt as to the complicity of the appellant in the death
of Jabeena. They proceeded on the basis that Jabeena died
an accidental death and even persuaded the investigating
authorities to release the body without a proper post
mortem. Therefore, the court will have to be very cautious
while appreciating this evidence. Assuming that the
evidence of PWs.1 to 7 can be accepted by the courts, it
would only conclude that the appellant had a motive to kill
Jabeena, but then it could also give a reason for PWs.1 to 7
to depose falsely against the appellant, in view of the
tragic death of a loved one. Motive being a double-edged
weapon, could cut both ways – helping or harming both the
prosecution and the defence. Hence, we are of the
considered view that if we are unable to place reliance on
the evidence of PW-8, then the evidence of PWs.1 to 7 will
not be sufficient to convict the appellant of the
prosecution charge. Of course, the prosecution has
established that the appellant was the only person in the
company of Jabeena and her child at the relevant time on the
fateful day. But this again stops the prosecution case in
the realm of suspicion, which by itself cannot be
substituted for hard evidence. Aware as we are of the fact,
a budding life came to an unfortunate premature end, our
jurisprudence will not permit us to base a conviction on the
basis of the evidence placed by the prosecution in this case
and the benefit of a reasonable doubt must be given to the
appellant. For the reasons stated above, this appeal
succeeds and is hereby allowed, setting aside the conviction
and the sentence. The appellant is on bail. His bail-bonds
shall stand cancelled.