Sahebrao Mohan Berad
Vs State of Maharashtra
J U D G M E N T
KR. PRASAD, J.
Laxmibai was married to the appellant about three years prior to the
occurrence. She was residing with the appellant and his parents. In the early hours
of 26th June, 1984, her dead body was found in a well close to their residence.
A report in regard to the incident was given to the police disclosing that she
met with an accidental death due to drowning. During the investigation it was found
that the deceased met with the homicidal death and accordingly police submitted
charge-sheet under Section 302/34 and 201 of the Indian Penal Code against the
appellant and his parents and ultimately they were committed to the court of
Sessions to face trial for the aforesaid offences.
Court acquitted all of them of all the charges.
appeal by the State of Maharashtra, the Division Bench constituting N.V. Dabholkar
and B.H. Marlapalle, JJ. differed in their conclusion. Dabholkar, J. dismissed the
appeal and affirmed the order of acquittal and while rendering opinion came to the
conclusion that the death was not homicidal and further the circumstance relied
on by the prosecution did not lead to one and the only conclusion that the appellant
had committed the murder of his wife. In this connection Dabholkar, J. has
observed as follows:
"The trial court
has held that the prosecution has failed to prove the death to be homicidal. In
this context, only few admissions by the Medical Officer Dr. (Mrs.) Sunanda Pande
need to be narrated verbatim. Earlier to these admissions, she has stated in her
chief-examination that she had given the opinion of strangulation on the basis of
injury referred in column 20 i.e. Larynx, Trachea and Bronchi contain frothy
discharge, Trachea congested and shows petechial hemorrhage in mucose, extravasations
of blood in subcutaneous tissues of neck and in muscles. As against this, she has
Trachea contained frothy discharge. This is a sign of drowning. In drowning, the
lung is always edematous. This is also a sign of drowning". She has
further admitted that "In case of drowning, there is whitish discharge
from nose. The whitish discharge as mentioned in column 13 is a sign of drowning".
It may be stated here that in column 13, she has recorded presence of whitish discharge
through right nostril. She stated that "In the post mortem notes there are
3 to 4 signs of drowning" and further stated that "In case of strangulation,
we can not find any sign of drowning internally". In view of existence of signs
of drowning, it cannot be said that Ld. Judge has taken unreasonable view in recording
a finding the prosecution has failed to prove the death to be homicidal i.e.
death to be by strangulation, with the aid of a rolling pin."
J., however, allowed the appeal, set aside the order of acquittal and held that
the circumstances led to the one and on the only conclusion that the appellant had
committed the murder of his wife. However, both the Hon'ble Judges maintained the
acquittal of the appellant's mother, accused Tulsabai. No decision on merit so far
as the involvement of the appellants father Mohan Kisan Berad was rendered as
he died during the pendency of the appeal before the High Court. While
recording the finding that the deceased met with homicidal death Marlapalle. J.
observed as follows:
"He opined before
us that in the case at hand the death was due to drowning but it was clear from
the postmortem notes that the deceased was first strangulated, made unconscious
and then thrown in the well. He, therefore, reiterated that it was for these
reasons that there was no water found in the lungs. He referred to the injuries
on the neck of the deceased noted in column No.20 of the postmortem notes and
confirmed the said injuries were by way of strangulation and they could have made
Laxmibai unconscious and in that state she thrown in the well. In short, he confirmed
the opinion that the death of Laxmibai was homicidal and not accidental."
the Judges constituting the Bench differed in their opinion regarding the guilt
of the appellant and the cause of death, the appeal was referred for decision to
third Hon'ble Judge. Accordingly, the appeal was placed for consideration before
P.B. Gaikwad, J. He agreed with the conclusion of the Marlapalle, J. and came to
the conclusion that the circumstances proved beyond all reasonable doubt lead
to one and on the only conclusion towards the guilt of the appellant and
further the deceased died a homicidal death. For coming to the aforesaid
conclusion Gaikwad, J. held that a false report was given by PW.1, Kashinath, the
uncle of the appellant at the instance of the father of the appellant alleging accidental
death of the deceased.
Another circumstance relied
on was that during the night between 25th of June, 1984 and 26th of June, 1984
the deceased Laxmibai was in the company of the appellant and residing with him.
Recovery of rolling pin by which the deceased was strangulated at the instance of
the appellant was another circumstance relied on to convict the appellant. Failure
of the appellant, who is none other than her husband and living together even
in the night of occurrence to explain the circumstances under which Laxmibai
met with the homicidal death was also taken into consideration to establish the
guilt of the appellant. As regards the cause of death Gaikwad, J. held that
Laxmibai died due to strangulation and it was a homicidal death.
In this connection he
observed as follows: "The Doctor, after considering the findings as regards
external and internal injuries given opinion as regards cause of death as "death
due to strangulation". If the evidence of PW.7 is read together with the
evidence of post mortem report and the symptom; noticed by her on external and
internal examination, I find that the said evidence is satisfactory and convincing
so far as opinion about cause of death is concerned."
the order of the trial court acquitting the appellant of both the charges was set
aside and he was held guilty for offence punishable under Section 302 and 201
of the Indian Penal Code and sentenced to suffer imprisonment for life and
rigorous imprisonment for three years respectively.
is how the appellant is before us in the present appeal.
plank of the submission of Mr. Arun R. Pednekar, learned Counsel appearing on behalf
of the appellant is that the deceased Laxmibai met with an accidental death due
to drowning and, therefore, the conviction of the appellant under Section 302 and
201 of the Indian Penal Code is bad in law. He points out that PW.7, Dr.(Mrs.)
Sunanda Pande, during the postmortem examination, has not found any external injury
on the person of the deceased. Presence of frothy discharge in the larynx and trachea
and whitish discharge from right nostril in the postmortem examination of the
deceased clearly go to show that the deceased met with an accidental death due to
Asha Gopalan Nair, learned Counsel representing the respondent-State, however, submits
that PW.7, Dr.(Mrs.) Sunanda who conducted the postmortem examination in unequivocal
terms stated that the deceased died due to strangulation and there is no reason
to disbelieve her evidence. She points out that the evidence of PW.7, Dr. Sunanda
and the postmortem report and the fact found by her on external and internal
examination of the dead body clearly go to suggest that the deceased met with a
have bestowed our consideration to the rival submission and we do not find any substance
in the submission of Mr. Pednekar. PW.7, Dr. Sunanda had performed postmortem
over the dead body of Laxmibai on 26th June, 1984 between 2 P.M. and 3 P.M. Her
assertion that she had experience of conducting the postmortem examination has not
been questioned by the appellant. She had found heamotoma on the neck and in her
opinion the death was possible by pressing the rolling pin on the neck. The rolling
pin recovered at the instance of the appellant was shown to her and she gave opinion
that the death can be caused by pressing the same on neck.
Doctor though had found frothy discharge in the larynx and trachea and whitish discharge
from the right nostril, still on consideration of the finding as regards the external
and internal injuries came to the definite opinion that the death was due to strangulation.
She had specifically denied the suggestion that the deceased met with an accidental
death due to drowning. In the face of the same we find it difficult to hold that
the deceased met with an accidental death. True it is that few signs of drowning
were found on the dead body in the post mortem examination and the doctor
though cognizant of the same came to the definite conclusion that the deceased died
of strangulation. In our opinion, the doctor who examined the deceased and
conducted the post-mortem is the only competent person to opine the nature of
injuries and the cause of death. It is only in a case, where the opinion is inherently
defective, the Court will discard its evidence. Reference in this connection can
be made to a decision of this Court in the case of Mafabhai Nagarbhai Raval vs.
State of Gujarat (1992) 4 SCC 69 in which it has been held as follows : "
.......... It is
needles to say that the doctor who has examined the deceased and conducted the post-
mortem is the only competent witness to speak about the nature of injuries and
the cause of death. Unless there is something inherently defective the court cannot
substitute its opinion for that of the doctor."
have not found the death of the deceased to be accidental. Further, the circumstances
referred to above clearly go to point out towards the guilt of the appellant.
are of the opinion that the High Court is right in coming to the conclusion that
the circumstances proved clearly points out towards the guilt of the appellant and
further deceased met with a homicidal death.
is on bail, his bail bonds are cancelled and he is directed to surrender
forthwith to serve out the sentence.
the result, we do not find any merit in this appeal and the same is dismissed
(HARJIT SINGH BEDI)
(CHANDRAMAULI KR. PRASAD)