CALCUTTA HIGH COURT
JUSTICE Rakesh Tiwari, Actg. CJ. & Mir Dara Sheko J.
Krishna Kant Dwivedi Vs. State Of West Bengal On 23 October 2017
Law Point:
Unnatural death of deceased by administering poison — Absence of any lawful incriminating circumstantial evidence — Conviction under Section 302, IPC and acquittal under Sections 498A, 201, IPC by Trial Court — No immediate medical or circumstantial evidence suggesting appellant was responsible for death of his wife, homicidal in nature, or inference that death was not pathological one — In absence of proof of homicidal death, presumption of pathological death due to obstruction in respiratory passage might not be ruled out — Neither in any case, nor charge framed, nor evidence led to prove death in question was accidental or suicidal — Judgment of conviction and sentence set aside.
JUDGEMENT
This criminal appeal is preferred on the grounds set out in the memorandum of appeal by the convict/appellant on bail assailing the judgment of conviction dated 12.6.2015 passed by learned Additional Sessions Judge, 1st Court, Alipore in District 24-parganas (South) in Sessions Case No. 27(12) 2011 (Sessions Trial No. 02(04) 2014) by which the appellant was sentenced on 15.6.2015 to suffer Life imprisonment with fine for the charge under Section 302 of the Indian Penal Code only, since the appellant was acquitted from two other charges punishable under Sections 498A and 201 of the Indian Penal Code.
2. Instead of repeating the given fact, the charges bearing the extract of the fact, as were framed on 13.2.2012 against the appellant, are set out:
“Firstly, That you after 23.00 hours on 8.5.2011 and any time before 8.00 hours on 9.5.2011 with an intention to commit murder of Smt. Manju Dwivedi, aged about 34 years, your wife, who was residing with you in your Quarters No. T- 9, Light Regiment, Rashapujna, P.S. Bishnupur, District- South 24 Parganas intentionally caused pressure over her neck by broad, soft, flexible object leading to her violent death and Smt. Manju Dwivedi on being removed in such condition to Command Hospital (E.C), Alipore, Kolkata-700027on 9.5.2011 at about 10.30 a.m. was declared found dead, and thereby you committed murder by intentionally causing death of your wife Manju Dwivedi and thereby committed an offence punishable under Section 302 of Indian Penal Code and within the cognizance of this Court.
Secondly, That since sometime after your marriage on 9th day of December, 1998 and while you were residing at T-9, 1831 Light Regiment, Rashapunja, P.S. Bishnupur, District-South 24 Parganas being the husband of Smt. Manju Dwivedi subjected your wife to cruelty both mental and physical as she had no issue and also on one pretext or another and that you thereby committed an offence punishable under Section 498A of the Indian Penal Code and within the cognizance of this Court.
Thirdly, That you on or about 8.5.2011 after 23.00 hours or/and any time on 9.5.2011 before 8.00 hours at Quarters No. T-9, Light Regiment, Rashapujna, P.S. Bishnupur, District- South 24 Parganas knowing that an offence of murder of your wife Smt. Manju Dwivedi, D/o. Dr. Laxmi Nand Negi, punishable under Section 302, IPC with death or imprisonment for life having been committed by you, did cause certain evidence of the said offence to disappear to wit any broad, soft, flexible object by which you pressed her neck and caused her death, with the intention of screening yourself from legal punishment and you thereby committed an offence punishable under Section 201 of the Indian Penal Code and within cognizance of this Court.”
3. Since either the State, or, the de facto complainant did not prefer appeal against the order of acquittal in respect of the abovementioned 2nd and 3rd charges, discussion over any allegation attracting those charges under Section 498A or 201, I.P.C shall remain out of purview of this appeal. Therefore, as indicated in the charge so framed, it would remain for consideration, whether the death of wife of the appellant, as taken place between 23-00 hours of 8.5.2011 and before 8-00 hours on 9.5.2011 within the quarters of the appellant situated at Rasapunja under police station Bishnupur District South 24 Parganas, was homicidal as a resultant effect of putting “pressure over her neck by any broad, soft, flexible object.”
4. Mr. Pratik Bhattacharya learned Counsel for the appellant criticising the impugned judgment of conviction as illegal and perverse, argued that learned Trial Judge only by way of academic discussion and without considering absence of legal substantive evidence wrongly concluded for conviction in this case. He submitted, a pathological death was wrongly converted into a homicidal death for which the appellant being an Army Officer in the rank of Major was booked to suffer life imprisonment. Mr. Bhattacharya however, submitted that during course of admission of appeal by this Court, his client though was given relief under Section 389 of the code to remain on bail by keeping the order of sentence in abeyance, but future of his service career was damaged since he became victim of the circumstances arose owing to such wrong decision taken in the case.
It is argued, that mere presence of the husband in the quarters would not give conclusion that he is responsible for death of his wife even if her death takes place pathologically.
Mr. Bhattacharya, further argued that at the earliest opportunity the appellant over phone communicated to his in-laws on 9.5.2011 at about 9 a.m. that his wife Manju was not responding, which was camouflaged by his in-laws that the appellant as if informed that the victim died by consuming poison and she was being taken to hospital. It is stated that had there been the incident of murder allegedly by smothering by means of putting pressure over or around the neck of the deceased with any broad, soft and flexible object like pillow, cushion etc., then signs of some minimum injuries of violence could have been expected to appear around the face, neck and Other parts of the stout and healthy body of the deceased. But the prosecution did not get any conclusive support from the medical evidence, though the father of the deceased and his near relatives, including the then D.I.G. of police of Himachal Pradesh were persuading through Ministry of the respective state to book the appellant to jail by cancelling his anticipatory bail, in transferring investigation of the case from the West Bengal police to CID and medical board was constituted to give expert’s opinion about the cause and nature of death.
He also submitted that inquest report was absent in the case without explanation, although post-mortem was held. Therefore, the autopsy Surgeon had no opportunity to verify as to whether in naked eye any bodily injury was detected or not at the first instance soon after death. According to Mr. Bhattacharya, chapter- VI of the PRB was absolutely ignored, for which even any presumption would not be available that all the formalities were performed correctly.
He then argues that by providing some naked photographs of the deceased, said to have been snapped privately by her brother after postmortem examination, during trial, prosecution tried to bring those photographs into evidence by marking those photographs as MAT Ext.II series, though the same were not part of police report within the meaning of Section 173 of the Code of Criminal Procedure and therefore those were inadmissible in evidence. It is stated that though from evidence of P.W.2 it was evident that in the preceding evening the deceased was in very jovial mood, and though the evidence of P.W.7 to P.W.10 did not support the prosecution case about any incident of quarrel, learned Trial Judge did not consider those evidence which could have answered to negate the charge of murder for want of motive.
Mr. Bhattacharya submits that if the evidence of P.W.11 is considered as he was examined by prosecution as their own witness and he was not declared as hostile witness, then the evidence of P.W.11 as a whole would favour the innocence of the appellant and not the case of the prosecution. Since wife of P.W.3, with whom alleged illicit connection of the appellant was said to have been cropped up, and the orderly peon, who had the best possible chance to see the appellant and his wife in the morning of that day during serving morning tea, having not been examined in the case, and thereby their evidence having been withheld, and there being no proof of homicidal death since medical evidence was not even united to support the case of prosecution, rather, opinion was given on guess and probability.
It is argued by Mr. Bhattacharya submitted to set aside the judgment of conviction and to allow the appeal at least by dint of benefit of doubt, if not on merit itself. Mr. Bhattacharya relied on the following cases:
(i)
Subramaniam v. State of Tamil Nadu reported in II (2009) DMC 48 (SC)=IV (2009) SLT 384=II (2009) DLT (CRL.) 869 (SC)=II (2009) CCR 763 (SC)=(2009) 2 Calcutta Crl. Law Reporter (SC) 48 (paragraph 14).
(ii)
State of Himachal Pradesh v. Keshav Ram & Ors., reported in AIR 1997 SC 2193 (paragraph 37)
5. Per contra Mr. Sanyal learned Senior Counsel appointed by the de facto complainant in private capacity with permission of the Bench submitted to dismiss the appeal upholding the conviction as directed by learned Trial Court for the offence under Section 302, I.P.C. His contention is that the couple was issueless so the deceased was unhappy. Conjugal relationship became strained due to cropping up intimacy of the appellant with Shalini, wife of P.W.3. The appellant approached P.W.3 to prepare divorce papers which was the motive in the case.
Mr. Sanyal heavily relied on Ext. Q, a copy of alleged message said to have been sent by the appellant through mobile to P.W.3 on 14.4.2011 asking P.W.3 to pick up Manju from Delhi Railway Station and requested to send divorce papers to sign. Further submitted, protrusion of tongue was there which could have been possible due to smothering, and injuries having been found in the hand and leg, which ought to be an outcome of putting resistance by her, presumption under Section 106 of the Indian Evidence Act would be available in the case, since except husband and wife there was no 3rd person in the quarters.
It is stated that thereby, the appellant except denial, failed to explain the circumstances, as were confronted to him with reference to the evidence on record, since it would also go against the appellant. Mr. Sanyal thus discussing the evidence on record and appreciating the judgment in-question as just and proper submitted to dismiss the appeal relying on the following cases:
(i)
Gajanan Dashrath Kharate v. State of Maharashtra reported in II (2016) SLT 318=AIR 2016 SC 1255 (para 12).
(ii)
Swamy Shraddananda v. State of Karnataka reported in VI (2008) SLT 322=III (2008) DLT (CRL.) 571 (SC)=(2008) 2 SCC (Cri) 322 (para 12).
6. Learned Counsel for the State Mrs. De, pursuant to direction of this bench though produced the respective case diary of the P.S. Case and of the U.D. Case, failed to explain therefrom as to why inquest over the corpse was not held though unnatural death case was registered at Alipore police station on the basis of medical report received from command hospital. However, ensuring the legal proposition Mrs. De fairly submits that though prosecution since could not rely on any evidence, be it oral or documentary, if the same would not be part of police report within the ambit of Section 173, or, was not made part of record through recourse under Section 311 of the Code of Criminal Procedure however Mrs. De, discussing the evidence on record submitted that the same would be sufficient to uphold the order of conviction, and she thus adopted the arguments of Mr. Sanyal praying to dismiss the appeal.
7. From the formal FIR (Ext.9) and written complaint (Ext.1) coupled with the evidence of P.W. 1, father of deceased Mr. L.N.Negi we find that on his arrival at Kolkata airport by Air from Simla via Delhi on 10.5.2011 at about 11 a.m. he (P.W.1) handed over the complaint at Bishnupur Police station within District 24-Parganss on 10.5.2011 at 2.05 p.m.
8. Source and text of information about death news of Manju was allegedly received from the appellant first by P.W.3 over phone. The statement of P.W.3 Dinesh on oath is as under:
“At 9.00 a.m. on 9th May, 2011, I received a phone call from Krishna Kant Dwivedi saying that your sister Manju was no more because she has consumed poison. I was shocked and had a suspicion that he must have killed here because the quarrel which was going on and also the way he spoke to me. Then I with my parents and other relatives came to Kolkata at about 10/11.00 a.m. on 10th May, 2011 and saw the dead body of my younger sister Manju at Command Hospital. I saw that her tongue was protruded, nose pinched, colour change on her neck, body was swollen and stiff. I being a Doctor my suspicion was confirmed that Krishna Kant Dwivedi must have killed my younger sister Manju by causing asphyxia. Then we along with my father and others went to Bishnupur P.S. and my father lodged FIR against Krishna Kant on 10th May, 2011.”
9. P.W.1, father of P.W.3 and the deceased corroborated the same. Relevant extract of the statement is set out hereunder:
“On 9th May, 2011 at about 9.00 a.m. in the morning Krishna Kant made a telephone call to my son at Delhi saying that Manju had consumed poison and she was no more. My son was shocked hearing the news. Krishna Kant then made a telephone call to his mother-in-law at about 10.00 a.m. at Simla saying that Manju had consumed poison and died.
I, my wife, my son, my brother-in-law and family relatives in all 8 persons went to Delhi. We 8 persons came to Kolkata by Air from Delhi and reached Kolkata at 11.00 a.m. on 10th May, 2011. From Airport all of us went to Command Hospital at Alipore. We saw the dead body of Manju. I saw that her tongue was protruded, eyes closed, symptoms on neck, stiffness of body. Rigor Mortis had set in. Then we went to Bishnupur P.S. I lodged a written complaint at the P.S. at 2.00 p.m. on 10.5.2011.
I believe that Manju was murdered by pressing on her neck, blocking the air ways which according to me caused protrusion of her tongue.”
10. P.W.2, being sister of the deceased corroborated source of her information in the same manner with almost similar text which is set out below:
“Next day at 9.00 a.m. in the morning Krishna Kant Dwivedi made a call to me saying that my sister had committed suicide by taking poison. I was shocked as the news was unbelievable. I conveyed the news to my parents and my husband. On 10th May, 2011 I reached Kolkata with my husband and children. On reaching Kolkata, we went to Command Hospital, saw the dead body of my sister kept in a mortuary, her nose was pressed and tongue was slightly protruded and there were marks on her neck. Her body was stiff and face swollen. I found the Doctors discussing that she was murdered by smothering.”
11. P.W.4 being the mother of the deceased disclosed her source of information about death of her daughter in the same manner, which is also extracted below:
“On 9th May, 2011 Krishna Kant made a phone call to me saying that Manju expired taking poison. Krishna Kant is present in Court today (identifies accused). On the next date I with my husband, son, my sister, my sister’s husband, in all 7/8 persons reached Kolkata. We went to Command Hospital on reaching Kolkata. I saw the dead body of my daughter. Her face was swollen, nose was pinched, there were marks on neck and body was stiff. My husband and my son went to Bishnupur P.S.”
12. P.W.5 was a Head constable of Hariyana Police. He and P.W.4 were full blooded brother and sister. P.W.5 being cousin to the deceased told that he heard from his father over telephone on 9th May, 2011 that Manju was no more, since she had consumed poison. He suspected that the appellant committed murder of Manju.
13. Admittedly, marriage between the appellant and Manju, since deceased, was held on 9th December, 1998 and they were issueless. P.W.2 stated the cause behind was that the appellant was impotent. This statement however was recorded after noting objection, may be for the reason that the assertion was foreign to the record. However, her statements in cross-examination relevant to the above shows:
Manju had desire to have child. I have made statements before police around Sept., 2011. I did not make any statement to police on date of my arrival at Kolkata.
I cannot say whether Manju conceived or not. She had blighted ovum.
In blighted ovum doctor does not declare pregnancy. This blighted ovum was after 9/10 years of marriage of Manju.
14. However, from assertions of P.W.1 to P.W. 5 all near relatives of the deceased, noted above, it appears that it was the appellant and no other person who himself communicated first, the death news of his wife, from his quarters over phone on 9.5.2011 at about 9 a.m. Pursuant to that information we got 2nd phase of action of the de facto complainant and others that they all arrived at Kolkata via Delhi and found the dead body on the next day in the alleged condition in the command hospital. The third phase of action was of lodging of written complaint at Bishnupur Police Station, going to the morgue for post mortem followed by cremation and going back to the destinations respectively.
15. P.W.1 the de facto complainant was a Retired Deputy Director, Animal Husbandry in Himachal Pradesh. In the relevant portion from Ext. 1 (written complaint he stated thus:
On 9.5.11 in the morning I received an information of my daughter’s death from Krishna Kant Dwivedi that the dead body of Manju was lying at Command Hospital, Alipur. From the statement of the neighbourers of Major Krishna Kant, Quarter No. T-9 it is clear that Manju Dwivedi expired in the night. I was told that her tongue was protruded, there was blue Patches of Post Mortem staining on her different parts of the body and there was on-set of Rigor Mortis. There was no other Person in the quarter except Krishna Kant Dwivedi and death probably occurred on the night of 8/09 .05/11 after 23.00 hrs, when neighbours heard quarrel between Manju and Krishna Kant, Manju was being tortured for many years by Krishna Kant on one pretext or the other as they had no issue.
16. On the face of such Ext. 1 we find that the alleged text of information of taking poison by Manju as her cause of death as was asserted by P.W.1 to P.W.5, which was said to have been communicated by the appellant over phone was completely absent in the text of the written complain. Further the relatives of the deceased on dock though claimed that on their arrival at the command hospital they (including P.W.1) found her tongue was protruded, nose was pinched, colour on her neck had changed, body was swollen but in the complainant it was asserted. “I was told that her tongue was protruded, there were blue Patches of Post Mortem staining on her different parts of the body and there was on-set of Rigor Mortis” meaning thereby, he heard it and did not see the same on his first visit of the dead body in the command hospital. If this part of assertion of Ext. 1 is believed that he lodged it upon gathering knowledge from someone (from whom not disclosed) then evidence in Court about his alleged seeing of protrusion of tongue, etc. are to be disbelieved as embellished one.
The learned Trial Court ignored to discuss on the above disparity between evidence of P.W.1 and the text of FIR. Law is set at rest that the FIR is the pivot of a cognizable criminal case to set the law on motion in determining the crime by investigation. Equally the text of the FIR can be used for the purpose of corroboration, omission and contradiction.
In the case in hand, as claimed by prosecution that, the appellant over phone allegedly disclosed cause of death of Manju, as due to taking poison, was absolutely absent in the FIR. On the contrary, admitting the source of information of death news of Manju P.W. 1 claimed in the FIR, “death probably occurred on the night of 8/9.5.11 after 23.00 hrs, when neighbours heard quarrel between Manju and Krishna Kant”. Who were those alleged neighbours were not disclosed, who had allegedly heard the quarrel preceding the death, not disclosed. Rather amongst the witnesses P.W. 8 and P.W. 9 were found as the residents of the same complex who were residing behind the quarters of the appellant. Either of them did not even whisper that they heard about any such quarrel between the appellant and the deceased soon before death took place or during the fateful night. Rather, in cross-examination P.W. 8 Mrs. Monika Bhowmick stated, “Mrs. Dwivedi was of a happy and of jovial nature.” P.W. 2 sister of the deceased in her examination-in-chief stated:
“On 8th May, 2011 around 9:00 in the evening my sister made a telephone call to me from Raspunja where she was residing with her husband. She was residing with her husband and none else were residing with them. She was at that time in good mood and happy.”
Therefore the assertions of making quarrel soon before death, as alleged in the FIR were unfounded.
17. Despite such ex facie contradiction between the FIR and evidence showing tremendous tendency to move the merit of the prosecution case with embellished nature, where question of life and death is involved in case of deciding the charge of murder upon the given evidence, we are to re-examine the evidence on record very cautiously to assess the propriety of the decision of learned Trial Judge by giving grace mark for the present in favour of the FIR with such an unfounded text, since generally the FIR, though is the pivot of the prosecution case, it may be used for the purpose of corroboration, contradiction and omission. The FIR cannot be an encyclopaedia of the prosecution case. When a case of cognizable nature is started on the basis of FIR then, had there been credence even on a solitary evidence and the Court if can earn full confidence upon such evidence of quality, it may be sufficient to answer the charge in the affirmative to deal with appropriate punishment. Since the appellant was set free on trial from the charges punishable under Section 498-A and Section 201 of the Indian Penal Code, and as no appeal was preferred either by the de facto complainant (who has engaged learned Senior Counsel to oppose in this appeal in private capacity) or, by the State, and as either of P.W.1, P.W.2, P.W.3, P.W.4 or P.W.5 was not with the deceased in their quarters on 8th or 9th May, 2011 their evidence, or any part thereof, as discussed above, would no more be useful for the purpose of extracting cause of death of Manju Dwivedi.
18. Amongst other witnesses P.W.6 Biju Ram, except occurrence of marriage between the deceased and appellant and fact of death of Manju on 9.5.2011, did not say anything. Gist of evidence of the maid servant P.W.7 was that before the date of death she had work in the quarters from 6 a.m. till 6 p.m. she had worked there for about two months. Though the appellant was a man of serious nature but P.W.7 saw that Manju Madam was jovial in nature and they were a happy couple and she did not see any dispute between them. But on that occasion after returning from her parents’ house Manju Madam did not laugh and used to remain quiet. This witness was not declared hostile. So the evidence as adduced by her both in examinationin- chief and cross-examination did not suffer from contradiction. Rather as it had begun so it ended giving no indication about any hostile temparent between the two though she worked since 6 a.m. till 6 p.m. in the quarters just on the preceding day. Hot talks, argument over any issue might be part of family life, and the same would be very normal and natural. Attention would be required when limit would be exceeding giving rise to untoward incidents of regular nature making the family life unbearable, which could give birth also criminal intention.
Any evidence so far with above indication of hostility between those two is yet to be traversed. P.W.8 Manika Bhowmik neighbouring housewife stated in cross-examination,
“Mrs. Dwivedi was of a happy and jovial nature. She used to participate in cultural programmes and mix freely with the officers’ wives.”
19. P.W.9 husband of P.W.8 and neighbour of the appellant, being military personnel knew the appellant since end of the year of 2009. Like evidence of P.W.7 and P.W.8 he did not give exposure of any incriminating evidence putting the family life or conjugal life of the appellant to any questionable or quarrelsome status which could lead Manju Dwivedi for abatement to suffer any unnatural death. We have taken note that investigation of the case was transferred to the C.I.D. But the orderly who used to supply morning tea at about 7.00 a.m. was not examined. Had he been examined the best possible evidence of the quarters on first visit could have come. From evidence it had come that Mr. Soodh the then DIG of Hariyana Police being closely related to P.W.1 and his family had arrived at Calcutta. It was P.W.9 who on behalf of the appellant had taken all care of not only of Mr. Soodh in all respect but of others as well by extending all kind of hospitality. Relevant part of evidence of P.W. 9 in cross-examination is set out hereunder:
On receiving of call from one Mr. Soodh, on request of Mr. Dwivedi who were to visit the Raspunja Camp, Vehicle was also provided by me to them for their use. The vehicle was provided to the relatives of Manju Dwivedi since morning and they used it at their convenience.
Outsiders are not permitted to reside in Military Cantonment and take food from Military Canteen unless permitted. I know Mr. Soodh by name and I can identify him. I know Manju’s parents brothers, sister and Mesoji (Meso). On 10th May, 2011 I got a call from one of the boys that relatives of Manju wanted hard drinks. I gave permission to supply hard drinks to relatives of Manju. All facilities to the relatives of Manju were given on account of Major Krishnakanta Dwivedi.
In connection with post mortem, I arranged for a vehicle for relatives of Manju and other officers. Officers of Bishnupur P.S. searched quarters of major Krishnakanta in my presence for three hours. After search the quarters were put under lock and key and key was retained by the Investigating Officer. I was told by the boys that the relatives of Manju Dwivedi were trying to visit the place of post mortem and talk to the doctor. I reached Bishnupur P.S. with my senior officer Brigadier D. Sarao on 10.5.11. When I reached I found the relatives of Manju were taking soft drinks and Mr. Soodh dictating the FIR on a type writer.
20. P.W. 10 was the driver posted in military camp. He brought wife of the appellant from Dumdum Airport to their quarters at Rasapunja, while she did not talk to him during journey. P.W. 10 did not state its date or time. He did not state any incriminating sequence. Rather in cross-examination he stated,
“Dwivedi came to Rasapunja Camp and from where they went to Ganga Sagar by several vehicles. Manju Dwivedi used to go for marketing alone or with her husband in my driven vehicle. Manju Dwivedi is jovial by nature.”
21. Thus, in the text of the FIR it was claimed “death probably occurred on the night of 8/9.5.2011 after 23:00 hours when neighbours heard quarrel between Manju and Krishna Kant and Manju was being tortured for many years by Krishna Kant…..” These aspersions remained uncorroborated and unfounded from evidence of either of the above witnesses coupled with the photographs marked on admission during evidence which were snapped at different times, places and sequences. We indicated above that the relatives of deceased claimed that the appellant while communicating the death news over phone had allegedly told that Manju consumed poison and she was no more. Mobile of both end were not seized to verify the recorded statement therefrom to get it established beyond any controversy, as to what was the actual time of communication, or, to whom first it was made, or, what was its actual text or, the conversation in return? Be that as it may, in the FIR (Ext. 1) information bearing cause of death owing to taking of poison was completely absent therein. Since medical report did not indicate anything about consumption of poison by the deceased, the allegations of the related witnesses about such allegations on cause of death appears to be an embellished and unfounded aspersions upon the appellant.
22. During examination under Section 313, Cr.P.C. while the appellant was confronted to those statements of P.W.1, P.W.2, P.W.3 or P.W.4 over giving alleged information by the appellant over phone about consumption of poison by Manju resulting death, the appellant answered that he did not say about taking poison by her. He stated this much that she vomited at the night and was not responding and he was taking her to hospital. Therefore, in view of uncorroborated and unfounded allegations of quarrel and torture against the appellant said to have taken place at night soon before the occurrence, taking advantage of death of the wife in the quarters of the appellant, where there was no third person, the omission to that effect in the FIR would now have a great role to play so far in disbelieving the oral testimony of the relatives of the deceased making the appellant responsible for the death of Manju by administering poison with an oblique mark. Some photographs showing marital events marked as MAT Ext. I series and eight naked photographs MAT Ext. II series, neither being part of the alamat or police report prepared under Section 173 of Code of Criminal Procedure, learned Trial Judge was noticed to have taken very casual approach in allowing those photographs to be marked as Alamats during examination-in-chief. Had it been confronted during cross-examination by the defence, on admission either of those could have been marked. But except the provision under Section 311 of the Code of Cr.P.C., that too at the given stage, law does not approve or sanction the way in which the photographs MAT Ext. I series or II series were allowed to be marked by learned Trial Judge since the photographs (Mat Ext.II series) were snapped by P.W.3 privately after post mortem examination and before cremation of the corpse.
From the evidence of P.W.1 it transpired that after post mortem examination of his daughter he took the dead body for cremation and it was cremated at Kalighat on 11.5.2011. The I.O. did not take any photographs of the dead body. Those naked photographs were allowed to be marked as MAT Ext. II series (of the deceased) at the instance of prosecution though the same were not part of police report under Section 173 of the Code of Criminal Procedure. How and when they were snapped would be evident from the cross-examination of P.W.1 in which reads as under:
“We reached Command Hospital at 12.30 p.m. We took photographs of dead body of Manju on 11.5.11 before cremation. After taking the body from the morgue after Post Mortem we took photos. My son Dr.Dinesh Bisht took the snaps. I cannot say who suggest to Dinesh to take photographs from different angles.”
23. Another surprising venue is unveiled before us, which could not be answered by the respondents, far to speak of satisfactorily despite of bringing the case diary of the unnatural death case registered at the nearest police station Alipore, and, the case diary dealt with by the I.O., with reference to the specific case started on receipt of complaint from P.W.1 as to what happened about holding inquest under Section 174 or 176 of the Code of Criminal Procedure before holding post mortem, at least when the relatives group were found on record very much vigilant to unearth the cause of death of their near and dear specially when they were armed with one High Police Officer. Mr. Soodh the then DIG of Hariyana Police by raising their suspicious finger towards the appellant since on that night except Manju Dwivedi and the appellant there was no other person in the quarters. Therefore, holding inquest over dead body is a relevant factor. If it would been done immediately at the first instance on receipt of information of an unnatural death, and all those findings relevant to the injuries, if any, through naked eye, would be then subject to verification by post-mortem report for determining cause of death to be followed by further medical opinion if necessary. That is why, all precautionary measures for shifting the body from the place of inquest to the morgue have been made to rule to abide by, so that, any possibility of distortion in the finding may be ruled out and a fair justice can be displayed.
In the case on hand, except Ext. 2/1 bearing signatures of P.W.1 and P.W.3 in the P.R.B. Form No. 53(Rule 276) relating to information about unnatural death of Manju Dwivedi and its sending to morgue for Post Mortem Examination followed by Post Mortem Examination report there was no inquest, meaning thereby, relevant Clauses (a), (b), (c), (d) of Rule 299, and, Rule 304 of Chapter VI of P.R.B. were violated. Those Rules are set out:
Rule 299. Inquiries into unnatural and suspicious deaths. First Information to be submitted. 12.Act.V, 1861.] — (a) Immediately after receipt of information of a death occurring in any of the circumstances mentioned in Section 174, Code of Criminal Procedure, a First Information From shall be submitted in B.P. Form No. 48. The information shall be recorded in the same manner as a first information in the case of cognizable crime.
(b) A Sub-Inspector, Assistant Sub- Inspector or Head Constable shall then proceed to the place where the body of the deceased person is, and after making the investigation prescribed in Section 174, Code of Criminal Procedure, and making such further enquiry as may be necessary shall submit his final report to the nearest Magistrate empowered to hold inquests. The investigation report, signed by the police officer and two or more respectable persons, as required by Section 174 of that Code shall be attached to the final report.
(c) Case diaries shall be submitted in inquiries into unnatural or suspicious deaths only if the inquiry lasts more than one day. But if the police officer making the inquiry finds reason to suspect the commission of a cognizable offence, the inquiry becomes one under Section 157, Code of Criminal Procedure and case diaries shall be submitted.”
Rule 304: Corpses sent for postmortem examination—(a) When corpse is sent in for post-mortem examination, it shall be accompanied by a copy of the surat hal report and a Challan in duplicate in B.P. Form No. 49 one copy of which shall be addressed to the Court Officer who shall forward it to the Superintendent and the other copy to the Medical Officer holding the post-mortem examination. All corpses shall be sent to the headquarters of the district, unless the medical officer at the subdivision has been authorised by the Provincial Government to conduct post-mortem examinations. Post-mortem examination shall, as usual, be done in cases of infectious diseases, e.g., tetanus, plague, smallpox, etc., whenever required by the police.
(b) The challan shall contain the date and hour of the actual despatch of the corpse, an accurate description of it, a statement of the apparent cause of death, the circumstances, if any, which give rise to any suspicion of foul play and an accurate list of clothes and articles sent in with the corpse.
(c) When sending a corpse for post-mortem examination, a sufficient quantity of powered charcoal shall be placed next to it and a sheet would round it, and in all cases whenever a charpoy can be obtained, the corpse shall be carried upon it and shall not be slung on a bamboo.”
There is a distinction between laches in investigation and violation of rule of law. Laches of the Investigating Officer sometimes are ignored, provided, prosecution case is found otherwise meritorious in the main having been able to obtain full credence on the substantive evidence on record, quantitatively how low so ever it may be. But in case of violation of rule of law the same cannot be equated with the laches of the investigating agency. Because violation of rule of law by one, means accrual of right of protection due to such violation in favour of the other, and, such right, so accrued, cannot be taken away in the name of laches.
24. In absence of non-compliance of above provision we have no opportunity to ascertain as to what were pre-post mortem condition, or, for not following the above rules whether any damage to any part to the corpse was caused, and if so where and how far the damage would have taken place for not taking precautionary measures, and any kind of damage by lapse of time whether would have caused any pre-judice to the appellant. Therefore, in absence of legal provision the photographs of the corpse, MAT Ext. II series snapped by P.W. 3 after postmortem and before cremation could have no legal bearing for any lawful consideration. Learned Trial Judge did not stretch his discussion about admissibility of those photographs under law while there was no inquest report on record either under Section 174 or Section 176 of the Code of Criminal Procedure.
25. The appellant’s quarters were in the Military Camp at Rasapunja under P.S. Bishnupur. In cross-examination P.W.1 was asked whether any amount of money was deducted or not from the appellant’s account due to hard drinks, dinner taken by P.W.1 and his guests, to which P.W. 1 could not give specific answer. It is obvious and is also evident from evidence of P.W. 9 that outsiders are not allowed to reside in military cantonment and take food from Military Canteen unless permitted. There also being nobody in the quarters of the appellant due to the mishap no one was there to extend hospitality to them. That is why, under direction of the appellant, on his behalf, P.W. 9 was looking after the appellant’s in-laws and their relatives and costs of food. etc. were borne by the appellant. P.W.1 with others stayed at Rasapunja till 12.5.2011, which is evident from his own evidence. The relevant extract of the same is set out hereunder:
“Husband of Kala Sood was an I.P.S. officer. He was D.I.G. of Himachal Pradesh. On 10.5.11 I was accompanied to Kolkata by my son, my wife, my daughter, my son-in-law Major Vivek Gupta, Taralal Gupta, Roshanlal Sood, Ravi Sood, Mr. Ami Chand, my 2nd son-inlaw engineer Vinod Thakur and his family from Kathmandu, Rakesh Sood and his family from Singapur. We stayed at military Camp; Rasapunja till the evening of 12.5.11. We had to take lunch, dinner, etc. from Military Camp Rasapunja.”
26. Relevant portion from evidence of P.W. 8 already has been set out at the bottom of paragraph 18. Therefore when all cordiality and hospitality were extended by the appellant on account of arrival of his in-laws and their relatives in one hand, and police case was lodged against the appellant at Bishnupur P.S., on the other hand, then it would be subject to investigation and trial. However, so far as public witnesses, both related and unrelated, nothing legal evidence could be unveiled to incriminate the appellant with unnatural cause of death which had allegedly taken place soon before the occurrence.
27. Observation of learned Trial Judge over alleged extra-marital relationship, said to have cropped up between the appellant and the wife of P.W.3, shows that:
“In reply to a suggestion put forward during cross-examination PW-1 has stated that he does not know whether the differences cropped up over Krisna’s illicit relationship or not. That means the defence has not ruled out such unapproved relationship. Again, we should not lose sight of the fact that the parents in law-in-respectable family would always try to conceal the unethical act of the daughter-in-law for family prestige. It is also found from the crossexamination of PW-20 that since after Maju’s death Salini has been living with her parents. Such separate living of Salini tends to make the story as to illicit relationship believable.”
P.W.3 had informed during cross-examination by denying suggestions that he had any complexity with his wife Dr. Shalini, or, the appellant and Manju had ever any occasion to settle any such complexity, or, he obtained decree of divorce, or, there were no longer husband and wife. However, P.W.3 further told in cross-examination that “after death of Manju doctor Shalini has been staying with her parents at Simla. I know that doctor Shalini sent her statement on affidavit before the investigating officer. I cannot say the details of the statement made by her on affidavit”. However on scrutiny of the entire evidence of two investigating officers (P.W.19 and P.W.20) we find no reflection about receipt of alleged affidavit of Shalini. Even if said version of P.W.3 was correct it might have some value in the perspective of saving of family dignity and prestige. But the same could not get any legal sanction for its use on eitherside without being examined or tested on dock, specially when till that stage there was no separation of marriage between P.W.3 and Shalini, meaning thereby, their marital relationship still was subsisting. Even though it was assumed, without admitting that there was extra marital relationship between the appellant and Shalini for which the appellant had allegedly requested P.W.3 for preparing papers of divorce, the same could have been some ground for attracting an offence like 306 of the Indian Penal Code, provided again that the death of Manju Dwivedi would have been proved as suicidal as a result of abatement for commissioning suicide.
In the case on hand, charge was framed alleging the appellant responsible for homicidal death of Manju Dwivedi and prosecution had led the evidence only with a view to prove homicidal death.
28. Since on that fateful night there was nobody except the appellant and his wife in their quarters, learned Trial Judge ended into conviction observing the following points against the appellant, which are set out:
According to learned Trial Judge it was proved,
(a)
the strenuous relationship in between the spouses,
(b)
wife’s suspicion as to her husband’s fidelity for Salini,
(c)
Salini’s matrimonial dispute of serious nature leading to separation,
(d)
a crushing conflict between the husband’s desire for divorce and wife’s clinching desire for keeping the marriage in tact,
(e)
a quarrel between the spouses preceding the death, and
(f)
asphyxial death of the wife caused by pressing the neck with some soft and flexible object.
Amongst the above points of observations, the same under (a), (b) and (d) could have been good grounds to attract the offence under Section 306 of the Indian Penal Code, provided, suicidal death would have been claimed and proved.
The observation of learned Trial Judge under Clause (c) was perverse since it was de hors the evidence as discussed above. Further, on the observation under Clause (c) there was no proof as already discussed. Lastly we are still traversing for the evidence on Clause (f) i.e., asphyxial death, though specific cause of death was alleged by smothering.
29. Now we want to enter into the arena of medical evidence to conclude as to whether the finding of learned Trial Judge mounting to homicidal death of the deceased could be accepted to lend support to the conviction of the appellant under Section 302 of the I.P.C. All the photographs of the couple and their relatives including in-laws marked as Exts. A B, C, D, E, F, G, I, J, L, M, N, series on behalf of the appellant were the signs of passing jovial and natural conjugal life without any unhappiness between the couple.
30. There was a criticism by Mr. Sanyal as to why the appellant being a military officer in the rank of Major having self-sufficient medical facility in their own military hospital known as Command Hospital instead of going there had taken his wife before P.W.11 who was practising allegedly an Ayurvedic system of medicine having even no licence. At the very outset, we want to lay our observation that P.W. 11 was cited as one of the witnesses in the charge-sheet by the I.O. after examining him under Section 161 of the Code of Criminal Procedure. The first I.O. P.W.19 also was very much conscious that the deceased was taken before the above local person practicing Ayurvedic medicine and then to the doctor of command hospital on 9.5.2011. P.W. 11 claiming himself as a B.A.M.S. in Ayurvedic told that on 9.5.11 in between 8:30 to 9.30 a.m. while he was sitting in his chamber of Charulal Pharmacy situated near Rasapunja Camp had examined a lady lying on the rear seat of a vehicle. At the instance of the prosecution one photograph Ext. II was shown to him, and he identified the photograph as that of the lady who was examined by him on 9.5.11 in that morning. He further disclosed that one Army man had claimed him to examine that lady. He also identified the appellant as said Army man. The gist of evidence of said Ayurvedic was that on being requested by that Army man he had examined that lady. He tried to feel her pulse but he could not locate it. He then tried to listen to her heartbeat with Stethoscope but he found that it was dialated and not responding. Accordingly, P.W.11 got down from the vehicle by giving his opinion that the patient expired.
During cross-examination by the appellant he was asked as to whether said Ayurvedic had any licence or not or as to whether he had issued any paper after examining the patient and in both the occasions he answered in the negative. The trend of cross-examination could have put one oblique mark so far as sanctity or authenticity of his practicing privately as an Ayurvedic, but, the undenying fact came in the ring of truth that said P.W. 11 whether was a licensed or unlicensed Ayurvedic used to practise from said Charulal Pharmacy and on examination he found the patient dead. Revealing of such fact through P.W.11 does neither increase nor decrease the case of the prosecution, or, even did not decrease the merit of the defence even if it is accepted that Manju Dwivedi at the instance of the appellant was taken to such unlicensed Ayurvedic practitioner. Because P.W.9 the neighbouring military officer on call of the appellant while visited his quarters along with his wife and while he came to learn that Mrs. Dwivedi was not responding such P.W.9 in examination-in-Chief stated, “on seeing what I saw I immediately called my Subader Major Ishwar Singh and requested him to take Mrs. Dwivedi to nearest available doctor. I did not accompany Mrs. Dwivedi”. So, at that time the immediate anxiety of the appellant was to regain response of his wife by hook or by crook, and that might be the best possible inference, to knock the door of the pharmacy where P.W.11 was available nearest to his quarters.
There is not even an iota of evidence that prior to visit to the chamber of P.W. 11 in that occasion the appellant had ever access to the chamber of P.W. 11. Therefore, it would not be possible on his part to be aware of as to whether P.W. 11 had license or not. Therefore, the evidence of P.W. 11 does not lend any assistance to strengthen the prosecution case to find fault with the appellant to visit to that pharmacy to contact P.W.11 instead of going thenceforth to the Command Hospital. Similarly we hold that there would be no heaven fall over head of the appellant for visiting P.W.11 at the pharmacy at the first instance specially because. P.W.11 was not declared as hostile. So he should be accepted as a natural witness. That was the first occasion of getting exposure of the dead body to the outsider like P.W. 11, who examined the dead body in between 8.30 to 9.30 a.m. on 9.5.2011. He did not however state about projection of tongue from the mouth of the deceased, or, about any external injury whatsoever around the face or neck, or even any sign of distortion of vermilion or doted mark of vermilion of her forehead which were expected in the use of a Hindu housewife, had there been a case of homicidal death by smothering with any soft long or broad flexible object.
31. Sometimes thereafter, of course, not before 10.30 a.m. Doctor Sourish Ray P.W. 13 got the opportunity to examine Mrs. Manju Dwivedi in the 2nd occasion, while she was brought to the Command Hospital by the appellant. P.W. 13 was the doctor on duty attached to the command hospital. Ext. 4 was the medical report prepared by P.W. 13. In Ext. 4 the case history in short was noted by him, from where it reveals, “They had an argument on 8th May, 2011 at 23.00 hours and she slept on the floor at around 23.00 hours. H/O single episode of vomiting on 9.5.11 at 2.00 hours”. This history obviously was noted by P.W.13 upon haring from the appellant, who did not suppress of the “argument” which took place between them. But obviously, in absence of proof of its extent or degree its impact should not be utilised adversely, against the husband only because of the reason that in the quarter there was no other person except those two in that night. However what P.W. 13 during crossexamination stated is also set out:
“I did not find any appearance of asphysial death. Extremely in case of asphyxia death, there will be finger marks on the neck, abrasions on face besides other external marks. One of the cause of suffocation is choking of the air passage.”
Virtually P.W.13 was the first medical expert who had examined and declared Mrs. Dwivedi medically dead. In cross-examination P.W. 13 told, “in case of respiratory failure there may be petechial haemorrhage in the lungs. Respiratory failure may be caused by trauma or by pathogenic causes. In case of pathogenic cause there might be petechial haemorrhage in the lungs”. Since he could not find any finger marks on the neck, abrasions on the face he did not find any appearance of asphyxia death. Then the observation made by learned Trial Judge in paragraph 43 of his judgment under Clause (f) that there was asphxial death became perverse. Thus the basis of conviction of the appellant as specifically mentioned by learned Trial Judge in paragraph 43 is held palpably illegal and perverse.
32. For want of record we have laid our observations that there was no inquest report either under Section 174 or under Section 176 of the Code of Criminal Procedure. Eventually though there was post-mortem report on record but prosecution could not connect even to its satisfaction, far to satisfaction of the Bench as to at whose instance the dead body of the deceased was sent to the morgue for holding post-mortem impact of which again might have a very vital role on either side, as would reveal from the relevant provision of the P.R.B., quoted above.
33. Before taking up the case for further investigation by the CID it was investigated by P.W. 19 who was then posted as Sub-Inspector of Police at Bishnupur Police Station under which the Rasapunja Military Camp was situated. From Ext. 1 the written complaint it reveals that the same was received at Bishnupur Police Station at 2.05 p.m. on 10.5.11 and the case was registered accordingly. Post-mortem report of the deceased shows that it was held at 3.55 p.m. The relevant act and activity of the I.O. P.W. 19 after the case being endorsed to him for investigation on 10.5.2011 as reveals from his evidence-in-chief is set out:
“I visited the P.O.. I prepared sketch map of P.O and examined witnesses. I made local inquiry.
This is the sketch map drawn by me and it bears my signature dated 10.5.11. (Sketch map marked Ext. 10).
I request the Commanding Officer, Rasapunja Military Camp of Light Regiment 1831 to hand over custody of accused to me. He deferred saying that without order of Superior he could not make over custody of accused.
I went to office of A.C.M.O.H., Mominpur, where post mortem was being done. After post mortem was over I returned to P.S.
The homeguard took the viscera collected to P.S. I made a seizure list under which I seized the viscera on 10.5.11.
This is that seizure list prepared by me in my handwriting bearing my signature. (Seizure list is marked Ext.11).
I put exhibit mark on the article and handed over to Malkhana in-Charge.
I closed diary for that date.
On 10.5.11 I examined Dr. Laxmi Nand Negi, Smt. Durga Negi and Dr. Diensh Bisht.”
There was no indication in his evidence as to whether he had any role in sending the dead body to the morgue for holding post mortem. On the contrary Ext. 2/1 bearing the signatures of P.W.1 and P.W. 3 goes to show that the dead body was sent to the morgue from Alipore Police Station with reference to one unnatural death case. To fill up this vacuum perhaps the father of the deceased P.W.1 at the instance of the prosecution stated earlier, “ I then went to Command Hospital and took the dead body to civil hospital for post mortem. I received the dead body putting my signature.” We have already mentioned that Ext. 2/1 bears not only signature of P.W.1 but there was also signature of P.W. 3. This was something unnatural, unusual and unwarranted that in a criminal case like the alleged one the dead body would be handed over in the custody of the victim party to escort it to the morgue for holding post mortem instead of escorting the corpse officially following all the formalities as mentioned in the P.R.B! Had the violation been possible due to high level influence, it did not yield any positive result rather it damaged the merit of prosecution case.
During foregoing discussion we found that P.W. 11 got the first opportunity to see and examine the deceased upto his capacity in between 8:30 to 9.30 a.m. when he did not even notice about protrusion of tongue, far to speak of any external injury. Either of the neighbours like P.W.8, P.W.9 or maid servant P.W.7 did not also state about protrusion of tongue or any kind of injury on the face or anywhere in the neck of Mrs. Dwivedi. It was P.W.13 who had examined Mr. Dwivedi in dead condition in second occasion at about 10.30 a.m. found protrusion of tongue without any sign of asphyxial death.
34. Now it was the turn of the autopsy surgeon to examine the dead body itself before and after dissection. P.W. 15 the then A.C.M.O.H. held such post-mortem. He found the tongue was protruded from mouth, but, no external injury was detected. Viscera, blood etc. were preserved and the opinion as to cause of death was kept pending by him till receipt of chemical examiner’s report on preserved materials. While such autopsy surgeon received the chemical examiner’s report he further opined as follows:
“That death appears to be due to lack of oxygenation to the tissue resulting in asphyxia due to obstruction of the respiratory passage. This is my further opinion prepared and signed by me with my official seal and dated 27.6.11. (Further opinion is marked Ext.7).”
Further, we found that very relevant part of evidence adduced in cross-examination by such P.W.15 was not considered by learned Trial Judge in proper perspective. In fact P.W.15 had rejected with firmness that protrusion of tongue would not be possible in case of causing death by smothering by means of putting pressure over mouth and nose by a soft object like pillow, cushion etc. which was the specific charge against the appellant. Even if the questionable photographs bearing the extent of protrusion of tongue would be accepted, it could happen if there would be pathological death during sleep beyond notice to other inmate at home who was also asleep in the same place. We would take note from Ext. 4 that in that night Manju slept on the floor and even if the fact of protrusion of tongue, as was visible only from the inadmissible photographs be taken into consideration coupled with corroboration from P.W.13, P.W.15, its extent of projection did not give exposure of any abnormality. Because that much of protrusion would be possible in case of also pathological death if the man while dying would remain unattended at the moment of death, or alternatively if such pathological death would be detected sometimes after death. That is why the protruded part of tongue visible from MAT Ext. II, II/7 were found to have been re-arranged by putting inside its mouth which were apparent from some of the photographs i.e. MAT Exts. II/2, II/3 and II/6 and such re-arrangement was supposed to have been done as a mark of emotional satisfaction before cremation since a case of homicidal death by means of smothering, as alleged, has no relativity to figure with protrusion of tongue under medical jurisprudence. Therefore, for want of any external sign of violation this inference might be much more probable in view of evidence of P.W.15, as was clarified further by him during cross-examination which are set out:
“In smothering protrusion of tongue from mouth cannot be possible if death was caused by smothering like pressing over the mouth and nostrils by a soft substance like pillow, etc.
The extra-vasation of blood over left lumber region of back might have been produced by the pressure over the particulars portion of the body with hard blunt substance with a broad base.
The injuries noted in P.M. report are not consistent with homicidal nature.”
The above expert’s opinion even could not be challenged by prosecution rather, prosecution well-relied upon the evidence of such medical expert, and it was evidence on their witness.
35. Cause of death, as a result, of administering poison has already been held as baseless in view of the discussion made above. Prosecution did neither stretch its case nor lead evidence to prove the impugned death as suicidal one. Dr. Anupama Basu, P.W. 12 examining the viscera of deceased marked as Ext. A/1, B/1. C/1 and the sample of vomit, said to be of the deceased Manju Dwivedi, could not detect poison. In cross-examination Dr. Basu also confirmed that he came to such conclusion by chemical analysis. Thus any allegation of causing death by administering poison to his wife, though charge was not framed with that allegation, also could not be established to give any scope to come down even to punish for any lesser offence.
36. The relevant portions from paragraph 12 from the case of Gajanan Dashrath (supra) and paragraph 34 from the case of Swami Shraddananda (supra) on which Mr. Sannyal relied by submitting that the appellant did not offer any explanation are set out:- Extract from paragraph 12 from the case of Gajanan Dasharath (supra):
“On 7.4.2002, mother of the appellant-accused had gone to another village- Dahigaon. Prosecution has proved presence of the appellant at his home on the night of 7.4.2002. Therefore, the appellant is duty bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of occurrence, when accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.”
Paragraph 34 from the case of Swamy Shraddananda is reproduced below for ready reference:
“If it is proved that the deceased dies an unnatural circumstance in her bedroom, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do not intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused.”
In both the cases (supra) prosecution was able to prove the death as unnatural. There were also injuries. Murder was caused in secrecy inside the house, where except the person murdered, or suffered with unnatural death there was no other person than the appellant alone. So he was supposed to explain the circumstance to avoid the presumption under Section 106 of the Evidence Act. But in the case in hand, upto this stage of discussion we find the prosecution in limping to prove the death of Manju Dwivedi even as unnatural one, far to speak of proving the same so far by evidence as homicidal in nature. In view of above, we hold that due to nonexplanation as to why there was alleged protrusion of tongue, stiffness of body , presence of rigor mortis, closedness of eyes, symptoms on neck adverse presumption under Section 106 of the Evidence Act would not be readily available, as was urged by Mr. Sanyal as well as Mrs. De.
37. During course of argument the case of State of Himachal Pradesh v. Jeet Singh reported in II (1999) SLT 586=II (1999) CCR 8 (SC)=(1999) 4 SCC 370 where the case of forcible smothering was dealt with was placed at the Bar specially because the fact and ratio of the case has got relevancy to the fact of the case on hand. In the case of Jeet Singh (supra) the fact in a gist is set out:
“The deceased was the wife of the accused. She was suffering from leucoderma and had white patches on her body which became the cause of dislike for her husband towards her as he mistook it to be a kind of leprosy. The accused was spending most of his days in the army field except for short intervals when he used to go home availing himself of the annual leave. The accused went home for his annual leave and from there he along with his wife left for his family house. On the fateful night the couple went to bed in the bedroom of the house but the next morning the wife was found dead. The prosecution version was that the accused administered some kind of insecticide to the deceased either deceitfully or forcefully and smothered her. The trial Judge convicted the accused for committing murder of his wife but the High Court acquitted the accused holding that it was a case of suicide.”
By obtaining special leave, appeal was preferred by the State of Himachal Pradesh. Acquittal was set aside and conviction of Trial Judge was restored by Supreme Court since the findings of several injuries were accepted and believed as the positive proof as a consequence of homicidal smothering and not a case of suicide. For the purpose of discussion on the relevancy we do incline to set out the extracts of the injuries from the case of Jeet Singh (supra) to indicate the injuries which had come out as a consequence of forcible smothering :
Paragraph 11— “1. Three bruises ¼” x ¼” each (on left upper nasolabial area).
2. Three bruises ¼” x ¼” each (on left side just below the angel of mouth).
3. A semi-circular and curved bruise 1.5″ x ½” obliquely placed along the face extending between right molac bone to right angle of mouth.
4. Four bruises ¼” x ¼” each on right side just below and lateral to angle of mouth.”
Paragraph 12—”5. Multiple linear abrasion (looking like scratch marks) were present over dorsum of hands and forearms, varying in size from pinhead to 3” in length.
6. Five bruises were present on lateral aspect of right thigh, measuring ½” X ¼” each.
7. Two bruises ½” x ¼” were present on the anterior aspect of the left leg.
It is pertinent to note, as already firmly confirmed by the autopsy surgeon that in case of smothering protrusion of tongue would not be possible. Said opinion of the autopsy surgeon found corroboration also from the above text. Despite of so many of injuries suffered by the victim presumably as a result of applying force from one side to cause death and effort of putting resistance from the other to get rid of there was no protrusion of tongue. Whereas, in the case on hand there was protrusion of tongue though not associated with any external injury of either of the likewise nature. We arrived at the observation so far, since evidence of P.W.11, P.W. 13 and P.W. 15 was found silent in having any external injury, though charge of murder was claimed by means of smothering with the aid of any soft and broad object, where some considerable external injuries, likewise the abovenoted, as marks of violence would have been expected.
38. That apart, the deceased, being Hindu housewife her well-plaited hair with ‘Sindoor’ in the middle part or ‘Bindi’ on her forehead ought to have been distorted in case of forcible smothering. In case of smothering minimum sign of distortion or smearing of said ‘Sindoor’ or ‘Bindi’ alongside her forehead and face would have been noticed at least by P.W.8, P.W.9, P.W.11, P.W.13 at the first intance. This evidence in any form is absolutely absent throughout the evidence, either in oral or in document, or even in any of the admissible photographs like MAT Ext.II series. As discussed so far, the medical evidence also could not climb even the first step far to speak of to be staired to reach upto its roof in lending reasonable proof of homicidal death by means of smothering.
39. P.W. 17 Dr. Mrs. Sipra Ray was then posted as the Assistant Doctor of Biology Division State Forensic Laboratory. She had examined some parcels and submitted her report marked as Ext.8. In cross-examination she confirmed that the findings of her report did not suggest, “that the subject was victim of any violence”. It is needless to mention that homicidal death even if it would have been caused by smothering as alleged in the charge would not be possible without minimum violence. In our criminal Justice system we cannot assume any foreign circumstance on which there is no legal evidence. Rather if merit would be dependent upon circumstantial evidence then the proof of circumstance is required in such a manner and to such a tune that there shall be only one inference to hold confirming guilt of the person facing the trial, and none else could be even suspected as responsible apart from the person charged against.
40. At last, though not the least, since the matter was in the hand of CID for further investigation, of course, under the order of this Court, one Medical Board was constituted to seek expert’s opinion presumably due to the reason that the medical evidence so far collected could not reach to establish such death as homicidal one. P.W. 16 Dr. Suddhodhan Batabyal was then posted at Medinipur Medical College and Hospital as its principal. On receipt of a letter on 15th July, 2011 from the I.O. he constituted the Medical Board with Dr. S. Chattopadhyay, P.W. 14 then posted as Associate Professor, Department of Forensic and State Medicine. Said Board was constituted to give opinion regarding cause of death of the deceased Manju Dwivedi upon the documents and coloured photographs produced before the Board. About the coloured photographs (MAT Ext. Ii series) we have already given our observations. The coloured photographs of the naked corpse, marked as MAT Ext. 2 series were taken by P.W. 3 after the corpse was handed over to the relatives on completion of post-mortem examination and before cremation at Kaligaht in private capacity. Exact time of death remained unexplored. Since according to prosecution case it was sometimes between 23.00 hours on 8.5.2011 and 8:00 hours on 9.5.2011, from evidence it appeared that the neighbours were getting call from about 8/8.15 a.m. and the relatives of the deceased were getting call from about 9 a.m. on 4.5.2011 that Manju was no more since she was not responding. Thus the photographs (MAT Ext. II series) were snapped not before at least about 20 hours after her death that too after shifting from one place to another place, and, there was no proof of maintaining the required formalities as per P.R.B., quoted above. Therefore those coloured photographs ought not to be the subject documents for consideration by the Board to lay the opinion. Nonetheless, the opinion of the board as divulged by P.W. 16 and P.W.14 was thus:
“Board’s opinion is that from abovesaid documents and findings of the P.M. Report and observation gathered from the colour photographs in all probability due to asphyxia by pressure over the neck by any broad, soft, flexible object and the manner of death regarding homicidal, accidental or unnatural may be opined after receipts of the mentioned pending reports from F.S.L.
So the report of the Board remained pending subject to receipt of F.S.L. report. P.W. 16, deviating from the opinion of autopsy surgeon tried to give impression by saying “Not necessary that in smothering there will be no protrusion of tongue.”
Curiously enough, P.W. 16 could not refer to any authority on the basis of which he came on dock to lay such of his opinion by which Dr. Batabyal tried to mean that in case of smothering there would be also protrusion of tongue. Even P.W. 16 stated, “I cannot say the name of authorities who have stated that there will be or will not be protrusion of tongue in smothering case.” What an expert he was (!) who was entrusted to form a medical board to give expert opinion for assisting virtually the Court in discharging the criminal justice delivery system properly. Accordingly, the opinion of the Board constituted with P.W. 14 and P.W.16 remained founded upon “probability”. In cross-examination P.W. 14 admitted Probability is not a concrete opinion. Equally he reiterated by saying, “further opinion of the Board is that the homicidal manner of death cannot be ruled out, but has to be corroborated with other circumstantial evidences”. But such P.W. 14 was fair enough to admit saying, “we did not get any circumstantial evidence to give a concrete opinion that the death was homicidal. Asphyxia may be due traumatic, accidental and pathological cause”. The report of such Board was marked as Ext. 5.
41. Therefore, it reveals that the extract of such medical evidence was founded on probability. There is no immediate medical or circumstantial evidence suggesting that the appellant was responsible for death of his wife which was homicidal in nature, or, inference could be made in other way that such death was not pathological one. From evidence of P.W. 15 we have found that “Pathological cause means any decease process”. Therefore, obviously in absence of proof of homicidal death, presumption of pathological death due to obstruction in the respiratory passage might not be ruled out specially because, there was neither any case, nor any charge was framed, nor evidence was led to prove that the death in question was accidental or suicidal. Either by examining the related witnesses, or, by examining the neighbours, as already discussed above, no proof of incriminating circumstantial evidence could be extracted against the appellant as the cognizable incriminating cause occurred soon before the death of his wife for which the death took place. Moreover, Ext. 8 report of F.S.L. prepared by P.W. 17 Dr. Mrs. Sipra Ray did not indicate anything incriminating circumstantial evidence. The extract from her evidence is set out:
“No blood, no semen(no spermatozoon) nor any other biological significant foreign body could be detected on the contents of the items marked D (vaginal swab), D1 (vaginal smears), D2 (scalp hair) and D3 (nail cuttings).”
However P.W. 17 in cross-examination gave us to understand that her forensic report did not “suggest that the subject was victim of any violence”.
42. Yes, when the Court, in necessity sometimes examines any matter, whether the judge, presiding the Court, has any academic expertisation, or not, on the subject, and for the reason thereby, jurisprudentially the Court is accepted as the expert of all experts. Therefore, while the Court remains in the seisin to examine the report of an expert the Court is either to reject or accept it by delivering judicious expression on it.
43. However in the case on hand, when all the medical experts, as many as six, and also P.W.11 the Ayurvedic, could not confirm the death-inquestion either as homicidal death by means of smothering, or, asphyxial death, or, the medical reports being found not associated with expected considerable external injuries and symptoms in case of death by smothering, or, any incriminating article with the sign of its use for causing death by smothering, having not been recovered despite of keeping the quarters of the appellant by the Investigating Officer under lock and key, or, even there being no sign of defacing or deshaping vermilion from the middle of head and forehead, and, alternatively, there being also no proof of causing disappearance of evidence to screen himself resulting already acquittal by learned Trial Judge for the offence under Section 201 along with Section 498A of the I.P.C., learned Trial Judge, instead of becoming academic on perverse observations, as indicated above, should have concentrated to the legal evidence only to answer to the charge under Section 302 of the Code disallowing any presumption under Section 106 of the Evidence Act only for the sole reason that in the quarters except the appellant and his wife there was no third person at that night. It may be noted that there was never ever any medical evidence of firm nature that the death was either homicidal, or, suicidal, or, accidental. Eventually, in absence of proof of either of those three rest cause of death remains as pathological one. In absence of report of administering any medicine or poison or its effect, prejudging anything to allow adverse presumption, by which learned Trial Judge was persuaded, is also not warranted by law, specially in a criminal trial.
44. Learned Trial Court, of course, had exerted himself well to give deliberation over the medical jurisprudence, but perhaps forgot that instead of discussing the subject with academic fluency its relativity to the evidence on record is the only life-line to answer the charge. Therefore, on reassessing the entire evidence on record, both oral and documentary very extensively, we are of the view that the ratio of the decisions, so cited on its own fact are not applicable in the fact of the instant case for want of association of expected injuries.
In view of the fact and evidence of the case as reconsidered by us, question of presumption under Section 106 of the Indian Evidence Act would not arise to bring home the charge of Section 302 of the code against the appellant, since we do not accept the logic and findings of learned Trial Judge in the perspective of evidence and materials on record favouring the charge as legal, and so, the same are not sustainable under law.
45. Thus in absence of any lawful incriminating circumstantial evidence either through the relatives or the neighbours or the maid-servant, death of Manju Dwivedi having not been proved beyond all reasonable doubt as an unnatural or homicidal being an outcome of administering any poison or medicine, there being no sign of abrasions on face besides external marks indicating asphyxial death, rather respiratory failure might be caused by trauma or by pathogenic causes, protrusion of tongue from mouth being not possible in case of causing death by smothering by putting pressure with broad and soft object like pillow, cushion etc., injuries noted in Post-Mortem report being inconsistent with the homicidal nature of death, F.S.L. report having not suggested any sign of violence, even report of the medical board having left the cause of death on probability, pending F.S.L. report. Unfortunately also P.W. 16 leading the Medical Board having failed to refer, or to give the name of authorities to justify their opinion we hold that learned Trial Judge did not exert, rather failed to exert his judicious expertisation to answer the charge under Section 302 of the Indian Penal Code by appreciating the evidence in proper perspective.
As a result of which observations of learned Trial Judge in ending into conviction have become perverse and illegal causing miscarriage of justice to the appellant.
In view of above, the judgment of conviction delivered by learned Trial Judge on 12.6.2015 sentencing the appellant on 15.6.2015 for life imprisonment for the offence under Section 302 of the Indian Penal Code is liable to be set aside allowing the criminal appeal.
46. The judgment of conviction and sentence delivered by learned Additional Sessions Judge, Alipore, 1st Court in Sessions Case No. 27(12) 2011/ Sessions Trial No. 2(04) 2014 is hereby set aside the Criminal Appeal No. 459 of 2015 is allowed accordingly. The appellant is hereby set free of the charge under Section 302 of the Indian Penal Code, and is set at liberty by being discharged from his bail bond since he was already acquitted by learned Trial Judge for the offence under Sections 498A and 201 of the Indian Penal Code. The surety also be released from liability of said bail bond.
47. No order as to costs.
48. Let the L.C.R. be sent back at once to the learned Trial Court along with a copy of this Judgment for information and necessary action.
49. The case diary and the record of U.D. case as produced by Mrs. De be returned to her forthwith.
50. Certified copy of the judgment be supplied on priority basis if applied for.
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