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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,

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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.

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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

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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.

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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

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(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

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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

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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.