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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  Â« 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.