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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