SAHEBRAO MOHAN BERAD Vs STATE OF MAHARASHTRA
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-000289-000289 / 2005
Diary number: 778 / 2005
Advocates: CHANDAN RAMAMURTHI Vs
ASHA GOPALAN NAIR
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.289 OF 2005
SAHEBRAO MOHAN BERAD .... APPELLANT
VERSUS
STATE OF MAHARASHTRA ..... RESPONDENT
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
1. Deceased 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.
2. Trial Court acquitted all of them of all the charges.
3. On 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
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and shows petechial hemorrhage in mucose, extravasations of blood in subcutaneous tissues of neck and in muscles. As against this, she has admitted that “Larynx and 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.”
4. Marlapalle, 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
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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.”
5. As 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
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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
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satisfactory and convincing so far as opinion about cause of death is concerned.”
6. Accordingly, 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.
7. That is how the appellant is before us in the present
appeal.
8. Main 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
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nostril in the postmortem examination of the deceased clearly
go to show that the deceased met with an accidental death due
to drowning.
9. Ms. 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 homicidal death.
10. We 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
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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.
11. This 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
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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 :
“3………. 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.”
12. We 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.
13. We 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.
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14. Appellant is on bail, his bail bonds are cancelled and he
is directed to surrender forthwith to serve out the sentence.
15. In the result, we do not find any merit in this appeal and
the same is dismissed accordingly.
……….………………………………..J. (HARJIT SINGH BEDI)
..........………………………………..J. (CHANDRAMAULI KR. PRASAD)
NEW DELHI, MARCH 18, 2011.
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