Section 176 of Indian Penal Code is on subject of
omission to give notice or information to public servant by
person legally bound to give it. This Section makes such
omission an offence punishable with simple imprisonment for
a term which may extend to one month or with fine of
Rs.500/- or with both. If such information pertained to an
offence, the simple imprisonment may extend to 6 months or
fine may be Rs. 1000/.
60. Section 43 does not stipulate what is legal. It points
out act or omission which is illegal and obligation to report
flowing from “legally bound to do” needs to be construed in
that light. So an incident like accident leading to death of a
minor girl which may also sustain a civil cause, being viewed
as illegal, therefore, must be reported to police or concerned
competent authority. Omission to report it is illegal.
Machinery mandated under S. 174 Cr.P.C. can not be allowed
to be rendered nugatory. All unnatural deaths are covered
under provisions of IPC. Whether it is an offence or not, is for
the Investigating Officer to decide. Otherwise it will provide an
escape route for the offender and he may clean or destroy all
evidence under a specious plea that the un-natural death was
not an offence but an unfortunate accident for which he is not
liable. Such a loophole is not envisaged by the Legislature. If
the arguments on these lines are accepted, S. 304A IPC will be
rendered nugatory. S.176 IPC therefore employs the word “on
any subject”.
Provisions looked into by us particularly Section 43 of Indian
Penal Code shows that even when the consequences furnish a
ground for civil action, the person in knowledge is legally
bound to give information thereof to the competent authority
which may include the police Section 176 of the Code makes
omission to give information “on any subject” to any public
servant, an offence. In this backdrop, Section 201 of IPC gets
attracted and causing disappearance of evidence of offence
under Section 176 becomes punishable thereunder. Section
43, Section 176 and Section 201 of Indian Penal Code clearly
obliged first accused No. 1 Nazir before us to report the
incident to police and not to wipe it out altogether.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
CONFIRMATION CASE NO.01 OF 2016
The State of Maharashtra Vs Nazir Javed Khan
CORAM :B. P. DHARMADHIKARI & PRAKASH D. NAIK, JJ.
PRONOUNCED ON :03rd June, 2019
JUDGMENT: (Per B. P. Dharmadhikari, J.)
The confirmation case arises from judgment dated
28.03.2016 delivered by Special Judge under the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred
to as “POCSO Act” for the sake of brevity) in POCSO Special
Case No. 230 of 2013. The trial court has vide its judgment
and order convicted accused Nazir Javed Khan for offences
punishable under Section 302 of IPC and sentenced him to
death. He is also directed to pay fine of Rs.500/- and in
default, to suffer rigorous imprisonment for six months. He is
also convicted under Section 376 of IPC with life
imprisonment and to pay fine of Rs.500/- or in default to
undergo rigorous imprisonment for six months. For conviction
under Section 201 of IPC, he is sentenced to rigorous
imprisonment for 7 years and to pay fine of Rs.3000/- or in
default to undergo rigorous imprisonment for six months. This
forms subject of challenge in Criminal Appeal No. 853 of 2018.
2. Accused no. 2 Vinod Meher is convicted under Section
201 of IPC and sentenced to suffer rigorous imprisonment for
three years and to pay fine of Rs.5000/- or in default, to suffer
rigorous imprisonment for six months.
3. Accused no. 2 Vinod has filed Criminal Appeal No.293
of 2016 challenging his conviction and it is being heard
alongwith Confirmation Case.
4. Story of prosecution is that on 01.01.2012, informant
Varis Ali lodged report about his minor daughter going
missing. On 02.01.2012, Varis Ali received a message from
police about finding of unidentified dead-body of minor child.
He identified the dead body in morgue as that of his missing
daughter. On 03.01.2012, Varis Ali learnt that a person
working in advertising firm in his area caused death of small
girl and had disposed of her body in Sambhaji Nagar area. He
gave that information to police and then accused no. 1 Nazir
was arrested on 03.01.2012.
5. Initially, A.D. No. 1 of 2012 was recorded and after
Varis Ali informed that some abnormal incident occurred in
gala near his house and after arresting suspected Nazir, after
investigation the police filed charge-sheet under Sections 302
and 201 of IPC.
6. Varis Ali had learnt that in an abnormal incident in
gala a dead body of minor girl was found and Nazir Khan, who
worked in that gala had disposed of that body on Western
Express Highway near Sambhaji Nagar, Vile Parle, Mumbai.
He, therefore, suspected that Nazir Khan had murdered his
daughter and had lodged report accordingly against Nazir
Khan and his employer i.e. accused no. 2. Employer was
manufacturing advertising boards in that gala.
7. It appears that charge-sheet under Sections 302 and
201 of IPC was filed on 30.03.2012. Varis Ali then filed Writ
Petition No. 372 of 2012 in High Court pointing out faulty
investigation and this Court on 01.08.2012 disposed of that
petition with direction for further investigation. After further
investigation, second charge-sheet was filed on 04.02.2013
when Section 376 of IPC was added alongwith Sections 3 and
4 of the POCSO Act and Section 109 of IPC. It appears that
first post-mortem of the victim was conducted by PW 20 Dr.
Pankaj Gajare and post-mortem report given by him is at Exh.
74. This doctor on request of police on 15.09.2012 also issued
a certificate at Exh. 75.
8. Because of High Court's directions second opinion
report was obtained and PW 22 Dr. Bhalchandra Chikhalkar
has been examined to prove it. Expert opinion provided by
him is at Exh. 83. This opinion shows that injury seen in
vagina and anus of victim might have been caused because of
sexual assault. It also mentions that the mark of injuries on
neck and injury on jaw may be due to strangulation of neck
and closing of nose and mouth. This certificate also states
that death may have occurred 12 to 36 hours before
postmortem.
9. It is on the basis of this material and witnesses
examined by prosecution to bring home the charge that
impugned judgment has been delivered.
10. We have heard arguments of learned APP Ms. M. M.
Deshmukh for the State, Dr. Y. M. Chaudhary for the accused-
Nazir and Mr. Manwani for the accused-Vinod in appeal.
11. Advocate Shri Chaudhary submits that material on
record does not show any death caused by strangulation or
any rape or any other offence of physical violence. He relied
upon post-mortem report submitted by Dr. Gajare for this
purpose. He points out that smear obtained from anus of
victim is found not to contain any male DNA by Chemical
Analyzer. The body was decomposed and injuries to external
genital are found to be due to decomposition. The postmortem
report does not find any injury in neck and does not
show any culpable homicide at all.
12. The report of the Expert PW-22 Dr. Chikhalkar is
objected to by him on the ground that said expert has not
seen the body at all. Victim was a Mohammedan person and
hence as per law, body could have been exhumed and
examined again. This doctor or then experts allegedly
accompanying him, have looked into only photographs and
arrived at their findings at Exh. 83. Evidence of Doctor (PW-
22) does not show any exercise of deliberation or discussion
with experts and hence Exh. 83 is not duly proved or
established. Learned counsel submits that in the wake of postmortem
report at Exh. 74 or then certificate at Exh. 75 issued
by Dr. Gajare, it was incumbent for Experts to record reasons
for arriving at a different opinion. Section 51 of the Indian
Evidence Act obliges them to give such reasons and in
absence of such reasons, mere opinion expressed by them
can not substitute Exh. 74.
13. Inviting attention to letter Exh. 75, he points out that
photographs were not clear and on the basis of such defective
photographs, PW-22 Dr. Chikhalkar has given a contrary
opinion. He, therefore, contends that report at Exh. 83 is liable
to be discarded.
14. Without prejudice he has read out Exh. 83 to submit
that it does not give any firm opinion and conviction cannot
be passed upon it.
15. He points out the long rope given by trial court to
prosecution while examining PW-22 and various opportunities
given by trial court to PW-22. He also relied upon crossexamination
of PW-22 to urge that his evidence does not
establish strangulation in any manner as cause of death. He
further states that due to decomposition, prolapse of anus is
already noted and in absence of male DNA, sexual assault is
also ruled out.
16. According to him, investigating officer has also not
supported evidence of PW-22. The trial court has erred in
ordering conviction only because of doubts felt by PW-22.
17. He invites attention to statement of accused under
Section 313 of Cr.P.C.. He points out that while answering
various questions like questions nos. 218, 219, 222, 223 and
224 etc. accused no. 1 Nazir has pointed out that the body of
child was found by him lying dead below plywood. Plywood
stored there had fallen on body of child. Advocate Chaudhary
relied upon evidence of PW-15 to show size and weight of
plywood. Huge plywood sheet, therefore, hurt/crushed child
aged about 4 years and Nazir, thereafter to avoid any
untoward attack on him or on his employer's establishment,
attempted to dispose of body. As nobody has not committed
any offences, his attempt was not to screen anybody and,
therefore, Section 201 of IPC is also not attracted.
18. Learned counsel appearing for the accused no. 2
Vinod submits that accused no. 2 was not even in town at the
relevant time and necessary facts are brought on record by
examining Manager Krishna PW-18. Even PW-7 Mohammad
supports innocence of Vinod in the matter. He submits that
deposition about instructions allegedly given by Vinod to Nazir
by him is hearsay and cannot be relied upon. He, therefore,
claims that conviction of accused no. 2 in the matter is
unwarranted and arbitrary. He points out that material on
record shows that accused no. 2 was informed about a girl
getting hurt and he was not informed about any death or then
about attempt to dispose of the body.
19. Learned APP submitted that here conviction of both
accused is based on circumstantial evidence, presence of
victim in godown (gala) is not disputed by them. Fact that she
died in said block is also not in dispute. The answers given by
accused no.1 Nazir to questions during Section 313 of Cr.P.C.
examination accept the role of both the accused persons and
hence, there is nothing wrong with the judgment of trial court.
The plywood board which was sold to a bhangar purchaser
Rawabali Khan (Exh. 15) shows that it could not have caused
death of victim.
20. Learned APP relies heavily upon order of High Court
dated 01.08.2012 and submits that evidence of PW 22 Dr.
Chikhalkar proves report at Exh. 83. This report is by three
experts and hence, the post-mortem report at Exh. 74
becomes insignificant. The report at Exh. 83 indicates cause
of death, its probable time and also points out sexual assault.
21. Our attention is invited to the report of Chemical
Analyzer (Exh. 62 Colly) to show that black coloured plain
tericot cloth piece at Exh. 1 and Exh. 2 forwarded by police
are analyzed and Exh. 1 which was wrapped on neck of
deceased is found to be matching with Exh. 2. According to
her, therefore, the fact that black colour netted cloth around
the neck of deceased was from establishment of accused, is
also conclusively established.
22. She has taken us through deposition of Investigating
Officer Mr. Shantilal Bhamare (PW 21) to urge that after High
Court orders, he has carried out re-investigation and in it has
found material against both the accused persons.
23. In brief reply in respect of learned counsel for
accused no.1 and accused no.2 urged that Exh.83 cannot be
looked into, it does not contain any definite opinion and also
lacks reasons to enable one to overlook earlier post-mortem
report. The opinion of Dr. Gajare PW 20 who had actually
seen the body, has to prevail.
24. Commending upon Section 201 of IPC, it is reiterated
that intention to screen real culprit needs to be established.
The convict under Section 201 of IPC, therefore, must possess
knowledge that some offence has been committed earlier.
Here accused no.1 Nazir does not have any such knowledge
and answers given by him did not point any culpable
homicide. Accused no. 1 only points out an accidental death.
Accused no.2 was not in town and, therefore, was not aware
of an offence or even nature of accident. His conviction under
Section 201 of IPC is perverse.
25. Both counsels relied upon evidence of Investigating
Officer PW 19 Shri Sawant, evidence of PW 1 Varis Ali and
evidence of scrap purchaser PW 15 Rawabali Khan.
26. Learned Advocate Chaudhary relies upon judgment
reported at AIR 1952 SC 354 – Palvinder Kaur vs. State
of Punjab particularly paragraph 14 to show that Section 201
of IPC becomes relevant when accused is shown to have
knowledge of commission of some offence and proceeds to
screen offender therein.
27. He sites (2013) 5 SCC 762 – Vinay Tyagi vs.
Irshad Ali Alias Deepak and Ors. paras 41 and 42 to urge
that earlier charge-sheet presented by Investigating Officer on
30.03.2012 cannot be ignored. (1997) 7 SCC 156 –
Tanviben Pankajkumar Divetia vs. State of Gujarat
paras 34,35 and 38 are relied upon to submit that opinion of
doctor who has seen the body needs to be preferred over the
opinion of doctor who has not seen the body. (1999) SCC
Online Bom 858 – Dhanaji @ Dhanraj Bagwan Jagdhane
vs. The State of Maharashtra paras 39 and 40 is relied
upon to submit that if in such a situation two opinions are
possible, one which favours accused needs to be accepted
and acted upon.
28. While answering the Court question, learned counsel
for the accused invite attention to provisions of Section 39
and Section 76 of IPC to show that alleged omission on the
part of Nazir to inform accidental death does not constitute an
offence at all. Learned Advocate Shri Chaudhary submits that
though the police investigation revealed no offence and even
evidence adduced in Court does not make out any offence,
here the State Government/Police has abused its powers. The
victim was aged about 23 years, when alleged offence took
place and is in custody since 03.01.2012. He is in solitary
confinement after the delivery of judgment dated 23.03.2016
and has thus put in three years there. According to him an
innocent person has been made a scapegoat and his future
has been spoiled in the process. He, therefore, seeks
compensation from State. He relies upon judgment reported
in (1985) 2 Bom.C.R. 518 - Surendrasingh B. Saud and
ors. Vs. The State of Maharashtra paras 26, 31, 32 and
the judgment dated 06.07.2018 in Criminal Appeal No. 812 of
2008 of Gwalior Bench of Madhya Pradesh High Court.
29. Learned APP submits that the trial court has
sentenced accused no.1 Nazir to death penalty and postmortem
report at Exh. 74 itself shows that the anal opening
had widened, thereby sexual assault has been established. In
this situation, belated arguments and demand for
compensation should not be looked into by this Court. She
adds that victim might have been alive also when Nazir
allegedly first found her and a timely report to police by him
would have saved her.
30. The consideration of present controversy can
conveniently commence by pointing out answers given by the
accused no.1 Nazir during Section 313 Cr. P.C. examination.
While answering question no. 20, he has stated that incident
of death of girl occurred in shop. He, however, denied that he
had concealed her in the godown. While answering question
no.21, he accepted that he had shown the body of girl to PW7
Asif. This answer, therefore, shows that accused no. 1 Nazir
accepted that he took PW 7 to mezzanine floor and there with
the help of torch in mobile, he did show the body of small girl.
Accused, however, has claimed that he had not seen the
colour of cloths on the person of that girl or then cloth around
her neck. Question no. 22 shows that PW 7 after seeing body
got frightened and advised Nazir to call accused no. 2 Vinod
immediately. Accordingly, Nazir had a talk with accused no. 2
Vinod and then accused no. 1 informed PW 7 Asif that accused
no. 2 Vinod had instructed accused no. 1 to dispose of body of
girl. He also told PW 7 Asif that Vinod inquired whether Asif
had arrived and accused no. 1 had told Vinod that Asif did not
come there. Vinod then advised Nazir not to disclose anything
to PW 7 Asif. All these facts are accepted to be true by
accused no. 1.
31. Answer given by Nazir to question no. 23 shows that
PW 7 Asif told Nazir to come alongwith him to police station
but Nazir refused. Asif told Nazir to handover body of girl to
her parents but then Nazir told Asif that father of victim was
kasai (Butcher) and would kill Nazir. After sometime, two
helpers Sadam and Azad arrived in godown. Sadam and
accused Nazir then cleared the godown floor while Asif went
away alongwith Azad. Accused Nazir has accepted this to be
true. While answering question no. 26, accused no. 1 Nazir
accepted that PW 8 Shankar Prasad was driving tempo which
was means of transport used by his employer. In question no.
27, evidence of PW 8 Shankar Prasad that on 01.01.2017, he
reached godown at 07.30 p.m. and there accused Nazir and
one more person from godown loaded one box in his tempo,
that box was totally packed, Nazir was sitting on front seat
and told PW 8 that box contained sample to be shown to the
client is put to Nazir. Accused Nazir accepted all these facts to
be true. He, however, had stated that box was not completely
packed but it was open. His affirmative answer to question no.
28 shows that tempo then proceeded towards Life Style Mall
at Mulund. Accused Nazir and one new boy sat in tempo, they
reached Nirmal Life Style Mall at about 09.30 p.m. and four
boxes were unloaded there. This fact is again accepted to be
correct by Nazir. Answer given to question no. 30 explains the
fact that as per request made by Nazir, PW 8 Shankar Prasad
dropped him and one box loaded earlier in godown at Andheri
Highway Hanuman Road Bus Stop, Vile Parle at about 10.30
p.m.. While answering question no. 43, Nazir accepted that he
left the dead body of girl at Vile Parle Highway. He also
accepted statement made to PW 19 Suryakant Sawant, Senior
P.I. regarding the place where he had kept the dead body.
While answering question no. 50, accused Nazir accepted that
he kept the box on Vile Parle Highway but denied that Sadam
was with him at that time or then he had removed plastic
which was rapped on the box. While answering last question
no. 57, he has stated that girl died due to fall of heavy
plywood on her body. When he saw her under plywood
outside the godown, he took that girl in the godown, put the
water on her face and she appeared to be dead, he became
afraid of people. He, therefore, kept her dead body at Vile
Parle. He claims that he was involved in a false case. These
answers given by him, therefore, show that the girl met with
an accident and her body was seen by him outside the
godown. He then took that body inside the godown at
mezzanine floor and concealed it. He has shown that body to
PW 7 Asif and then he disposed of the body by putting it on
highway at Vile Parle/Andheri. For this purpose, he used
tempo of PW 8.
32. It is now necessary to examine what is the cause of
death of girl as per prosecution & whether it stands proved. To
bring this on record, prosecution has relied upon post-mortem
report at Exh. 74 and evidence of Dr. Gajare PW 20. It has also
relied upon evidence of PW 22 Dr. Bhalchandra Chikhalkar and
the report of Experts at Exh. 83.
33. The Eeidence of first doctor who conducted the postmortem
of deceased viz. Dr. Pankaj Gajare (PW 20) shows that
he has conducted post-mortem of victim girl on 02.01.2012
and she was aged about 8 years. He found traumatic
asphyxia (natural) to be the cause of death. He deposed that
death was possible due to accident or homicide. His report of
post-mortem is at Exh. 74. His cross-examination reveals that
there were no external injuries on the body and there were no
injuries on her private part. There was no evidence of sexual
assault and there was no evidence of strangulation. There
were no fracture injuries on her neck bone. He accepted that
traumatic asphyxia can be caused due to the pressure on
chest. He also accepted that if heavy weight falls on a person,
death can be caused. He stated that as requested by A.C.P.
vide letter dated 10.09.2012, he issued certificate at Exh. 75
on 15.09.2012.
34. This certificate at Exh. 75 reveals that Dr. Gajare has
issued it after going through post-mortem report, perusing
photographs which were not very clear, chemical analysis
report and HB report, a spot visit to crime scene and after
considering circumstances surrounding death. Police sent this
letter on 10.09.2012 i.e. almost ten months after the incident
and this certificate Exh. 75 is issued five days thereafter. It
shows absence of any ligature mark or injury mark on neck. It
also mentions that deceased had worn black duppata as seen
in photographs. It is important to note that the inquest report
Exh. 36 dated 02.01.2012 mentions a black ribbon and not a
duppata. Doctor has invited attention to findings in column 15
of post-mortem report and reiterated that no injury to cervix
and vagina and to anal opening was seen. He has added that
body was in a decomposing stage. He has further mentioned
that no evidence of sexual assault was noted in post-mortem
examination. In paragraph 3 of this certificate, he has
explained the reasons for froth or liquid oozing from body. He
has also stated that death may have occurred 36 to 46 hours
before receipt of the body in morgue and there was no injury
mark over and around nose and mouth. There was no injury
mark, external as well as internal over neck region. His
remark in column 15 of post-mortem report shows that there
was rectal collapse, and vagina & cervix were soft and
swollen. Anal mucous had loosened, soft and anal opening
had widened perhaps due to decomposition changes. He had
preserved anal smear. Report of the Chemical Analyzer on this
anal smear at Exh. 68 (collectively) shows that no male DNA
is detected in it.
35. Other doctor who has been examined by prosecution
is PW 22 Dr. Chikhalkar. In his examination-in-chief, he has
spoken of second opinion and that opinion is at Exh. 83. Exh.
83 is communication addressed to A.C.P., Shri Bhamare (PW
21). It is on the subject of sexual assault on deceased and it
mentions letter dated 31.07.2012 sent by said A.C.P.. This
certificate Exh. 83 is signed by PW 22 and his two other
colleagues. It appears that four questions were put before the
Board of Experts which presumes or presupposes an injury on
neck and jaw and at vagina and anus. These questions,
therefore, overlook the categorical findings in post-mortem
report Exh. 74 that there were no external or internal injuries.
The Board has opined that injury on neck and jaw may be
caused due to pressing of neck and/or due to closing of mouth
and nose. Board has also opined that possibility of sexual
assault leading to injury in anus and vagina, can not be
denied. While answering question no. 3, the Board has
mentioned that those symptoms may be on account of violent
asphyxial death. These experts have mentioned that death
may have occurred 12 to 36 hours before the post-mortem.
36. These experts, therefore, have not conducted the
fresh post-mortem and Exh. 83 contains only answers to
questions put by Investigating Officer. These three doctors
who have signed Exh. 83 obviously after 31.07.2012 had no
reason and occasion to watch the dead body. Two of them
have not been examined by the prosecution.
37. If, PW 21 ACP had already received this Exh. 83, there
was no reason for him to send the letter on 10.09.2012 to Dr.
Pankaj Gajare and to obtain certificate at Exh. 75 dated
15.09.2012 from him. Certificate dated 15.09.2012 militates
with Exh. 83 issued by Experts. It is to be noted that High
Court disposed of Writ Petition No. 372 of 2012 on 01.08.2012
and Certificate Exh. 75 was sought thereafter. Information in
Exh. 83 was sought from Dean of J.J. Hospital on 31.07.2012.
This inconsistency or incongruency in stance of Investigating
Officer, therefore, cannot be understood.
38. Report at Exh. 83 is prepared by Experts who had no
occasion to see body. The trial court is permitted prosecution
to conduct examination-in-chief of PW 22 Dr. Chikhalkar at
some length on different dates. In paragraph 12, this witness
stated that alongwith letter dated 27.07.2012 sent by police,
he got photographs of post-mortem and post-mortem report.
Only on perusal of these documents, he gave his opinion and
he had not gone beyond it. He further stated that because of
photographs only he gave opinion regarding asphyxia due to
strangulation and possibility of rectal penetration. He has not
stated anywhere that post-mortem report at Exh. 74 was
incorrect. His deposition does not show that three experts
shown as privy to Exh. 83 deliberated and then recorded their
findings jointly. On the contrary, paragraphs 12, 13 and 15 of
his deposition show it to be his personal view and exercise. He
has in cross-examination, in paragraph 5, accepted that
violent asphyxia can be caused due to crushing due to
accident. This witness also accepted that he had not
personally examined the dead-body of victim girl. According
to him, Exh. 83 is submitted to I.O. on 11.09.2012.
39. Law on the point needs brief mention at this stage.
Probative worth of expert evidence is explained in paragraph
254 by the Hon. Apex Court in State of Karnataka v. J.
Jayalalitha, (2017) 6 SCC 263, at page 535, as under
--“254. In re the probative worth of experts evidence, a host
of decisions in Mahmood v. State of U.P., Chatt Ram v. State
of Haryana, State of H.P. v. Jai Lal, Ramesh Chandra Agrawal
v. Regency Hospital Ltd. and Dayal Singh v. State of
Uttaranchal have been cited at the Bar. As all these decisions
postulate identical propositions, the gravamen of these
authorities would only be referred to avoid inessential
prolixity. These renderings explicate that an expert is one who
has made a subject upon which he speaks or renders his
opinion, a matter of particular study, practice or observation
and has a special knowledge thereof. His knowledge must be
within the recognised field of expertise and he essentially has
to be qualified in that discipline of study. It has been
propounded that an expert is not a witness of fact and his
evidence is really of an advisory character and it is his duty to
furnish to the judge/court the necessary scientific criteria for
testing the accuracy of the conclusions so as to enable the
judge/court to form his/its independent judgment by the
application of such criteria to the facts proved by the
evidence. Referring to Section 45 of the Evidence Act, 1872,
which makes the opinion of an expert admissible, it has been
underlined that not only an expert must possess necessary
special skill and experience in his discipline, his opinion must
be backed by reason and has to be examined and crossexamined
to ascertain the probative worth thereof. That it
would be unsafe to convict the person charged on the basis of
expert opinion without any independent corroboration has
also been indicated. It has been held that the evidentiary
value of the opinion of an expert depends on the facts upon
which it is based and also the validity of the process by which
the conclusion has been reached. The decisions underline that
the court is not to subjugate its own judgment to that of the
expert or delegate its authority to a third party but ought to
assess the evidence of the expert like any other evidence. In
State of H.P. v. Jai Chand, (2013) 10 SCC 298 , Hon. Apex
Court observes in para 21 that the post-mortem report is not
a substantive piece of evidence. But the evidence of such
doctor cannot be insignificant. Apex Court in State of Haryana
v. Ram Singh held as under: (SCC p. 429, para 1)--“1. While it
is true that the post-mortem report by itself is not a
substantive piece of evidence, but the evidence of the doctor
conducting the post-mortem can by no means be ascribed to
be insignificant. The significance of the evidence of the doctor
lies vis-Ã -vis the injuries appearing on the body of the
deceased person and likely use of the weapon therefor and it
would then be the prosecutor’s duty and obligation to have
the corroborative evidence available on record from the other
prosecution witnesses.”
40. We have commented on contents of Exh. 83 above. It
does not show any definite opinion as to cause of death or
about sexual assault on deceased. It only points out
possibilities. It appears that these experts were not required
to comment on correctness or otherwise of Exh. 74 or Exh. 75
and hence, there are no reasons recorded as required by
Section 51 of Indian Evidence Act. From Secion 46 of the
Evidence Act it is clear that the facts bearing upon opinion of
experts are germane. It lays down that facts, not otherwise
relevant, are relevant if they support or are inconsistent with
the opinions of experts, when such opinions are relevant. If
Ex. 83 is relevant, it can not become decisive unless it with
reasons, counters the details noted in postmortem report at
Ex. 74 or certificate at Ex. 75. As per Section 51, whenever
the opinion of any living person is relevant, the grounds on
which such opinion is based are also relevant. Ex. 74 & 75 are
based upon the facts noted therein and are supported by
evidence of Dr. Gajre who conducted the postmortem. Dr.
Chikhalkar or the Board which issued Ex. 83 does not counter
the deposition of Dr. Gajre or Exs. 74 & 75. His evidence does
not counter with reasons Ex. 74 or 75. Ex. 51 only answers
queries of the investigating officer but does not support those
answers with any grounds. The answers are also based upon
factually wrong premise. In view of this position, it is not
necessary for us to examine whether after cross-examination,
trial court was justified in permitting prosecution to reexamine
PW 22 Dr. Chikhalkar and whether it was used to fill
in any lacunae.
41. Judgment of Hon’ble Apex Court reported in (1997)
7 SCC 156 – Tanviben Pankajkumar Divetia vs. State of
Gujarat shows that in case of any dispute or doubt, the
opinion of doctor who has seen the dead body needs to be
preferred. The contrary view has to point out why the
conclusions of a doctor who recorded the same after
conducting actual postmortem, are wrong. Similarly,
judgment of this Court reported at (1999) SCC Online
Bombay 858 – Dhanaji @ Dhanraj Bagwan Jagdhane vs.
The State of Maharashtra shows that in case of difference
of opinion and doubt in such matters, benefit has to go to
accused.
42 Here the post-mortem report at Exh.75 and evidence
of Dr. Gajare PW 20 rules out any sexual assault on deceased.
It does not show any homicidal death and points out
traumatic asphyxia (natural) as cause of death. This doctor
had accepted that such traumatic asphyxia can be caused
due to pressure on chest. His conclusions are backed by the
observations during actual process of the postmortem. Exh.
83 does not in any way militate with categorical findings
therein. At Exh. 75, the Experts while answering question nos.
1 and 2 have acted on findings of injury marks or injuries on
body part, though they had no occasion to see the body of
deceased at all. They have expressed possibility of
strangulation and there is no definite opinion about it.
Similarly, they have not categorically recorded any findings
on sexual assault. We, therefore, find that this document and
deposition on record does not support a conclusion of death
caused due to strangulation or closing of nose and mouth. It
does not support theory of any sexual assault on deceased.
43. It is to be noted that accused was arrested on
03.01.2012 from the place where he was working and it is not
the case of prosecution that any injury was found on his
palms or other body parts to support the theory of homicide
or sexual assault.
44. At this stage, it will be important to note that the
Inquest Panchnama of deceased was conducted on
02.01.2012 between 13.35 hours to 14.45 hours. This
Panchanama Exh. 89 while describing clothes on the person of
deceased states that there was a black ribbon. It does not
mention any black cloth around neck. It also shows age of
deceased to be 7 to 8 years. It mentions that the body was
not having any external injuries even on private parts.
45. This Panchnama at Exh. 36, therefore, supports
evidence and post-mortem by Dr. Gajare and his findings in
Exh. 74 that there were no external injuries on the body.
Manipulation if any, could have commenced only after
accused persons were traced out and on 02.01.2012 when
Exh. 36 was drawn, there was no question or scope of
therefor.
46. The investigation shows disclosure by accused no. 1
Nazir that it was accidental death. Investigating Officer either
before orders of High Court or then after orders of High Court
has not taken any steps to rule out the accident. The
Panchnama Exh. Nos. 60 and 60-A show the memorandum
under Section 27 of Evidence Act about wooden box used by
Nazir to move the body out of godown and its seizer. There,
the godown blocks(gala) mentioned are E-3 and A-4. Size of
block mentioned is 70 ft. x 35 ft. with mezzanine floor of 45 ft.
x 35 ft. Thus, the alleged accident if any, took place in or near
this godown.
47. Evidence of PW 15 Rawabali Khan shows that he
purchased from accused Nazir wooden scrap worth Rs.300/-.
He had purchased four pieces of plywoods. He identified those
four pieces produced in Court as the same. His crossexamination
reveals that each piece was approximately 8 ft. x
3 ft and weighing about 9 kilograms. Question whether these
pieces or any of them were standing inside the godown or its
vicinity to support story of an accident has not been answered
by prosecution on record. Whether, its fall on body of
deceased child could not have resulted in death is also not
answered anywhere. This question was not put either to PW
20 Dr. Gajare and then to PW 22 Dr. Chikhalkar. The
Investigating Officer has not completed the investigation
consistent with the requirements of law relating to
circumstantial evidence. The prosecution is relying upon
circumstantial evidence only and answers given by accused
Nazir during investigation and also in his Section 313 Cr.P.C.
examination. Whether that material is sufficient to rule out
accidental death or absence of rape, has remained
unanswered.
48. In a case based upon circumstantial evidence, the
prosecution has to indicate a chain of circumstances which is
so complete that it does not permit implication of any other
person except accused. Chain has to, therefore, unerringly
point at accused only as the person responsible for the
ofence. It has also to rule out involvement or possibility of
involvement of any other person. As already noticed supra,
we have found that the post-mortem report Exh. 74,
certificate at Ex. 75 or then report of Experts at Exh. 83 does
not support the prosecution in this respect. The material on
record does not record a finding of rape, also do not show a
culpable homicide and do not rule out an accidental death.
Investigating Officer, therefore, has left the material lacunae
in the entire exercise and that has not been rectified even
after directions dated 01.08.2012 issued by this Court in Writ
Petition No. 372 of 2012.
49. Though judgments cited before us show that earlier
charge-sheet cannot be totally discarded, in present facts, we
do not find it necessary to dwell more on Vinay Tyagi vs.
Irshad Ali Alias Deepak and Ors. reported in (2013) 5
SCC 762. Similarly, though judgment shows that precedece
is to be given to opinion of doctor who has seen body of
deceased, or then in case of two conflicting expert opinions,
benefit must go to accused, in present facts, it is not
necessary for us to consider even those judgments in more
details. The report of Forensic Laboratory on identity of cloth
found with body of deceased and similar cloth taken from
establishment of accused no. 2 employer does not, therefore,
assist the case of prosecution. We have already noted supra
that at inquest, a black ribbon was found with the body and it
does not mention that black ribbon was tied around the neck
of deceased. There is no mention of any “dupatta”. There is,
therefore, no legal evidence to convict accused no. 1 Nazir
either under Section 376 or Section 302 of Indian Penal
Code. .
50. This brings us to consideration on offence under
Section 201 of IPC. Answer to question 22 by accused no. 2
Vinod shows that he had directed accused no. 1 Nazir to
inform the incident to parents of victim and to call doctor for
immediate aid. Investigating Officer Shri Sawant in crossexamination
states in paragraph 11 that PW 18 Krishna who
happens to be Business Development Manager of accused
no.2, had told that victim died as plywood sheet fell on her
person. His further cross-examination shows that upon
instruction given by accused no. 2, Manager in his
establishment Pallavi Jaykar came to police station at about
8.30 p.m. to 9.00 p.m. on 02.01.2012 and I.O. recorded her
statement. In that statement, she disclosed that accused no.
2 employer had asked her to report the incident to police.
51. PW 18 Krishna has in his cross-examination stated
that he got knowledge of incident on 02.01.2012 and
accordingly, he communicated it to police. He has also stated
that accused Vinod was out of station on 02.01.2012. PW 7
Mohammad Shaikh who worked as a Supervisor states that at
about 3.30 p.m. on 01.01.2012, he got knowledge of accident
from accused no. 1 Nazir. This evidence is already discussed
by us above.
52. This material, therefore, shows that accused no. 2
was not present in establishment/godown at the time of
incident or immediately thereafter and he had given
necessary instructions to his Business Development Manager
PW 18 and to Manager Pallavi Jaykar. Accordingly, Pallavi
Jaykar had also gone to Investigating Officer. Material does
not support his role in removal of body or sale of plywood
sheets.
53. The relevant provisions contained in Indian Penal
Code and Criminal Procedure Code need to be perused to find
out whether accused no. 1 or accused no. 2 had violated any
legal provision and thereby have committed an offence under
S. 201 IPC.
54. Section 39 of Cr.P.C. casts obligation upon public to
give information of certain offences. Section 39(1) in its
clauses I to XII mentions various Sections of IPC and thus any
member of public not reporting any of said offence without
reasonable excuse can be said to have violated obligation
imposed upon him under this section. Clause V mentions
offences under Sections 302, 303 and 304 of IPC. To this
clause, the Parliament has added (“offences affecting life”).
Thus, general member of public not concerned with such
offence affecting life, is also under obligation to give
intimation to police officer, if he is aware of its commission.
55. Our attention was also invited to Section 176 of
Cr.P.C. However, that section is regarding inquiry into cause of
death which takes place in situations contemplated in S. 174
which appears to be material here. It shows that after the
receipt of information that a person has committed suicide, or
has been killed by another or by an animal or by machinery or
by an accident, or has died under circumstances raising a
reasonable suspicion that some other person has committed
an offence, the police officer is required to be processed as
stipulated therein. Police officer getting it has to immediately
give intimation thereof to the nearest Executive Magistrate
empowered to hold inquests, and, unless otherwise directed
by any rule prescribed by the State Government, or by any
general or special order of the District or Sub-Divisional
Magistrate, to proceed to the place where the body of such
deceased person is, and there, in the presence of two or more
respectable inhabitants of the neighbourhood, has to make an
investigation, and draw up a report of the apparent cause of
death, describing such wounds, fractures, bruises, and other
marks of injury as may be found on the body, and stating in
what manner, or by what weapon or instrument (if any), such
marks appear to have been inflicted. This report is to be
signed by such police officer and other persons, or by so
many of them as concur therein, and forthwith forwarded to
the District Magistrate or the Sub-Divisional Magistrate. We
need not here refer to other subsections of this Section but
special care is envisaged when such death is of a woman or
when circumstances appear doubtful. It shows the care &
precaution to be taken by the Police and the State, when the
death is not natural. Here the death is of minor girl & it is also
not natural. No person aware of such death or incident
resulting into it, can suppress its knowledge from the Police or
try to expunge it altogether. Law does not enable such
person failing to intimate to claim that the death was a pure &
simple accident and nobody was negligent in it. It is the
obligation of the police officer to investigate & report on the
cause & nature of incident. S. 176 envisages a parallel
inquiry by the Judicial Magistrate or the Metropolitan
Magistrate or Executive Magistrate in certain circumstances
as specified therein.
56. Section 32 of Indian Penal Code specifically states that
words employed in Penal Code which referred to acts done
extend also to illegal omissions. Section 33 clarifies that
series of acts and series of omissions are to be treated as
single act or single omission. Section 35 points out liability of
each person who joins in the act with knowledge or intention
that the act is being done with criminal knowledge or
intention. Section 36 stipulates the effect caused partly by act
and partly by omission. Section 39 points out when a person
can be said to cause an effect voluntarily. Section 40 defines
what is an offence. A thing made punishable under Penal
Code is, defined as offence for the purpose of Chapter IV and
V-A and in relation to sections specified in first paragraph of
Section 40, “offence” also includes a thing made punishable
under a special or local law as defined therein.
57. A brief mention of certain provisions in chapter 4 of
IPC dealing with General Exceptions is necessary. Section 76
excepts act done by person bound or by mistake of fact (not
by mistake of law) believing himself to be bound by law from
the concept of offence. Section 79 similarly, excepts act done
by person justified or by mistake of fact (not by mistake of
law) believes himself justified by law. Section 80 excepts
accident in doing a lawful act from concept of offence. Section
81 also excepts an act which is likely to cause harm when it is
done without criminal intent and to prevent harm to other.
The riders or limitations in which such exceptions are made
applicable show requirement of good faith or absence of
criminal intention etc. It is therefore apparent that the
legislative provisions dealing with the “act” or “omission”
contain a scheme & it covers all such acts or omissions which
are “offences”. General exceptions therefore exclude only
such “acts” as are specified therein for the obvious lack of any
malice in it. Excepted acts are therefore undertaken bonafide
& there is no dishonest intention right from inception till end.
58. Section 43 is an important section and it defines the
word “illegal” and phrase “legally bound to do”. The manner
adopted to explain these concepts is rather peculiar. This
Section 43 reads as under:--
“43. “Illegal”, “Legally bound to do” -
The word “illegal” is applicable to everything which
is an offence or which is prohibited by law, or which
furnishes ground for a civil action; and a person is
said to be “legally bound to do” whatever it is
illegal in him to omit.”
59. Section 176 of Indian Penal Code is on subject of
omission to give notice or information to public servant by
person legally bound to give it. This Section makes such
omission an offence punishable with simple imprisonment for
a term which may extend to one month or with fine of
Rs.500/- or with both. If such information pertained to an
offence, the simple imprisonment may extend to 6 months or
fine may be Rs. 1000/.
60. Section 43 does not stipulate what is legal. It points
out act or omission which is illegal and obligation to report
flowing from “legally bound to do” needs to be construed in
that light. So an incident like accident leading to death of a
minor girl which may also sustain a civil cause, being viewed
as illegal, therefore, must be reported to police or concerned
competent authority. Omission to report it is illegal. Not only
Section 43 of Penal Code is widely worded but its Section 176
is also made equally wide by the legislature. Use of words
such as “any subject” or “information” in said section is in
consonance with spirit underlying Section 43. Owner or
occupier of a godown where accident occurs, therefore,
cannot avoid the obligation cast upon him by these
provisions. Any other person in that establishment present
legally there as an employee, who sees such an accident or
learns about it also cannot avoid the duty to report. Various
provisions in Penal Code noted by us supra including
“exceptions” carved out by legislature therein do not support
the contentions of accused that the omission to report an
accident resulting into death, is not an offence at all.
Machinery mandated under S. 174 Cr.P.C. can not be allowed
to be rendered nugatory. All unnatural deaths are covered
under provisions of IPC. Whether it is an offence or not, is for
the Investigating Officer to decide. Otherwise it will provide an
escape route for the offender and he may clean or destroy all
evidence under a specious plea that the un-natural death was
not an offence but an unfortunate accident for which he is not
liable. Such a loophole is not envisaged by the Legislature. If
the arguments on these lines are accepted, S. 304A IPC will be
rendered nugatory. S.176 IPC therefore employs the word “on
any subject”.
61. This brings us to Section 201 of Indian Penal Code.
This section is on the subject of causing disappearance of
evidence of offence or giving false information to screen
offenders. Its substantive part reads as under;
“201. Causing disappearance of
evidence of offence, or giving false
information to screen offender.- Whoever,
knowing or having reason to believe that an
offence has been committed, causes any evidence
of the commission of that offence to disappear, with
the intention of screening the offender from legal
punishment, or with that intention gives any
information respecting the offence which he knows
or believes to be false;”
62. As against Section 201, Section 202 is on intentional
omission to give information of offence by a person bound to
inform. Section 202, therefore, springs into effect after an
offence is already committed and there is failure to report it.
This section also employees the phrase “legally bound to
give”.
63. Section 299 (Explanation 2) of Indian Penal Code
states that whenever death is caused by bodily injury, the
person who causes such bodily injury is deemed to have
caused such death and it constitutes a culpable homicide.
Section 304 prescribes punishment, if such culpable homicide
does not amount to murder. Section 304-A prescribes
punishment for causing death by negligence.
64. Therefore, whether plywood sheets stored in the
godown of accused persons slipped and fell on the person of
deceased victim because of its negligent storing or then
because of some human act is the moot question which
needed investigation and answer. Unfortunately, in the
present matter Investigating Officer has not brought on record
any material in that respect. The situation has not undergone
any change even after order of this Court dated 01.08.2012.
65. Such an investigation also might not have been
fruitful because plywood sheets were already disposed of by
accused no. 1 Nazir to bhangar purchaser Rawabali Khan.
Provisions looked into by us particularly Section 43 of Indian
Penal Code shows that even when the consequences furnish a
ground for civil action, the person in knowledge is legally
bound to give information thereof to the competent authority
which may include the police Section 176 of the Code makes
omission to give information “on any subject” to any public
servant, an offence. In this backdrop, Section 201 of IPC gets
attracted and causing disappearance of evidence of offence
under Section 176 becomes punishable thereunder. Section
43, Section 176 and Section 201 of Indian Penal Code clearly
obliged first accused No. 1 Nazir before us to report the
incident to police and not to wipe it out altogether.
66. We have already found that accused no. 2 was out of
station and his involvement in an attempt to remove body of
victim or then wiping out evidence of untoward incident is not
proved. However, same cannot be said about accused no. 1
Nazir. It is he who has played key role. Witnesses examined on
record show his design & act to throw body at a distant place
so that nobody could have connected it with his work place.
His selling the plywood sheets to PW 15 Rawabali Khan shows
that he wanted to paint a picture that no untoward incident
whatsoever has occurred in his godown.
67. Whether death of victim was accidental or then it was
because of negligence warranting punishment under Section
304-A are the disputed questions. Whether death was
culpable homicide amounting to or not amounting to murder
also needed factual investigation. Accused no. 1 Nazir
attempted to render all this impossible and, therefore,
removed body of victim and the plywood boards.
68. Provisions noted by us supra and scheme thereof
show that accused no. 1 Nazir was legally bound to give
information to police about accidental death. The accidental
death may have civil consequences or penal effect. He could
not have avoided that investigation or to defeat it, he should
not have caused disappearance of evidence relating to it.
After jeopardizing that investigation, accused Nazir can not
take a plea that there was no “offence” involved in the
incident of death of victim. Being an employee legally present
in the establishment & having noticed the death of a minor, it
was his duty to report the accident or incident to the police
and to allow them to find out how the victim came below the
plywood sheets/s. Court has, therefore, rightly found him
guilty of offence punishable under Section 201 of Indian Penal
Code.
69. However, material on record does not show that trial
court was justified in holding accused no. 2 Vinod also guilty
under the said provision.
70. In this situation, we find that it is not necessary to
consider the arguments of Advocate Chaudhary on demand of
compensation. Accused no. 1 who has indulged in criminal
offence is declared not entitled to any such relief. Hence, case
law cited by Advocate Chaudhary on this issue also need not
be evaluated.
71. We have already noted supra that medical evidence
does not permit us to hold that there was any offence
punishable under Section 302 of Indian Penal Code or under
Section 376 of Indian Penal Code. Going by the story of
accused no.1, Investigating Officer ought to have attempted
to find out whether fall of plywood sheet/s on victim would
have resulted in her death. This would have needed
investigation into length, width and weight of plywood sheet
and whether only one or all three plywood sheets fell on
deceased. This would have also required scrutiny of a place
where those sheets were stored and mode and manner in
which they were placed. That investigation would have
brought on record whether sheets were secured properly so as
to avoid any accidental fall.
72. If sheets were stored outside godown and children
used to play in that area or frequented that area, whether
proper protection/precaution was taken to see that even
during such play or other activities of children, the sheet
would not fall/slip down. There is absolutely no investigation
in this respect. This absence of investigation is despite the
directions dated 01.08.2012 in Writ Petition No. 372 of 2012.
73. Father of deceased had approached this Court
promptly for proper investigation and steps taken by
Investigating Officer thereafter do not bring on record due
diligence. PW 22 Dr. Chikhalkar was consulted and on the
strength of vague opinion at Exh. 83, unsustainable charge
under Section 376 of IPC was added. Now, it is impossible to
find out the truth or the real incident. But omission to conduct
proper investigation despite directions of this Court definitely
entitles family of victim to reasonable compensation from
State Government. In the present facts, we find that grant of
amount of Rs.10,00,000/- (Rupees Ten Lakhs only) to her
parents for such lapse on the part of Investigating
Agency/Officer will meet the ends of justice. However, the
State shall recover that amount after proper inquiry and as
per procedure from Investigating Agency or Officer and/or
others found guilty of lack of diligence in the matter.
74. Accordingly, we proceed to pass following order;
(a) The judgment and order dated 28.03.2016
delivered by Special Judge, City Civil and Sessions
Court, Greater Mumbai convicting accused no. 1
Nazir for offences punishable under Section 302
and Section 376 of IPC is quashed and set aside.
(b) Conviction of accused no. 1 Nazir under
Section 201 of Indian Penal Code is, however,
maintained.
(c) If accused no. 1 Nazir has already
undergone rigorous imprisonment of seven years as
directed by trial court, he be set free forthwith, if
his custody is not required by State Government in
any other matter.
(d) Criminal Appeal No. 853 of 2018 filed by
accused no. 1 Nazir is thus, partly allowed.
(e) Conviction of accused no. 2 Vinod under
Section 201 of Indian Penal Code is set aside and
Criminal Appeal No. 293 of 2016 filed by him is
accordingly allowed.
(f) Bail bond furnished by accused no. 2 Vinod
is cancelled.
(g) We direct State Government to pay to the
parents of victim namely PW 1 Varis Ali and mother
of victim amount of Rs.10,00,000/- (Rupees Ten
Lakhs only) for negligent investigation into death of
their daughter on 01.01.2012.
(h) The State of Maharashtra shall recover that
amount after proper inquiry and procedure from
Investigating Officer and/or others found guilty of
lack of diligence in investigation.
(i) Muddemal property be dealt with as
directed by trial court after appeal period is over.
(j) Criminal Confirmation Case No. 01 of 2016,
Criminal Appeal No. 293 of 2016 and Criminal
Appeal No. 853 of 2018 are accordingly disposed of.
(PRAKASH D. NAIK, J.) (B. P. DHARMADHIKARI, J.)
Print Page
omission to give notice or information to public servant by
person legally bound to give it. This Section makes such
omission an offence punishable with simple imprisonment for
a term which may extend to one month or with fine of
Rs.500/- or with both. If such information pertained to an
offence, the simple imprisonment may extend to 6 months or
fine may be Rs. 1000/.
60. Section 43 does not stipulate what is legal. It points
out act or omission which is illegal and obligation to report
flowing from “legally bound to do” needs to be construed in
that light. So an incident like accident leading to death of a
minor girl which may also sustain a civil cause, being viewed
as illegal, therefore, must be reported to police or concerned
competent authority. Omission to report it is illegal.
Machinery mandated under S. 174 Cr.P.C. can not be allowed
to be rendered nugatory. All unnatural deaths are covered
under provisions of IPC. Whether it is an offence or not, is for
the Investigating Officer to decide. Otherwise it will provide an
escape route for the offender and he may clean or destroy all
evidence under a specious plea that the un-natural death was
not an offence but an unfortunate accident for which he is not
liable. Such a loophole is not envisaged by the Legislature. If
the arguments on these lines are accepted, S. 304A IPC will be
rendered nugatory. S.176 IPC therefore employs the word “on
any subject”.
Provisions looked into by us particularly Section 43 of Indian
Penal Code shows that even when the consequences furnish a
ground for civil action, the person in knowledge is legally
bound to give information thereof to the competent authority
which may include the police Section 176 of the Code makes
omission to give information “on any subject” to any public
servant, an offence. In this backdrop, Section 201 of IPC gets
attracted and causing disappearance of evidence of offence
under Section 176 becomes punishable thereunder. Section
43, Section 176 and Section 201 of Indian Penal Code clearly
obliged first accused No. 1 Nazir before us to report the
incident to police and not to wipe it out altogether.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CRIMINAL JURISDICTION
CONFIRMATION CASE NO.01 OF 2016
The State of Maharashtra Vs Nazir Javed Khan
CORAM :B. P. DHARMADHIKARI & PRAKASH D. NAIK, JJ.
PRONOUNCED ON :03rd June, 2019
JUDGMENT: (Per B. P. Dharmadhikari, J.)
The confirmation case arises from judgment dated
28.03.2016 delivered by Special Judge under the Protection of
Children from Sexual Offences Act, 2012 (hereinafter referred
to as “POCSO Act” for the sake of brevity) in POCSO Special
Case No. 230 of 2013. The trial court has vide its judgment
and order convicted accused Nazir Javed Khan for offences
punishable under Section 302 of IPC and sentenced him to
death. He is also directed to pay fine of Rs.500/- and in
default, to suffer rigorous imprisonment for six months. He is
also convicted under Section 376 of IPC with life
imprisonment and to pay fine of Rs.500/- or in default to
undergo rigorous imprisonment for six months. For conviction
under Section 201 of IPC, he is sentenced to rigorous
imprisonment for 7 years and to pay fine of Rs.3000/- or in
default to undergo rigorous imprisonment for six months. This
forms subject of challenge in Criminal Appeal No. 853 of 2018.
2. Accused no. 2 Vinod Meher is convicted under Section
201 of IPC and sentenced to suffer rigorous imprisonment for
three years and to pay fine of Rs.5000/- or in default, to suffer
rigorous imprisonment for six months.
3. Accused no. 2 Vinod has filed Criminal Appeal No.293
of 2016 challenging his conviction and it is being heard
alongwith Confirmation Case.
4. Story of prosecution is that on 01.01.2012, informant
Varis Ali lodged report about his minor daughter going
missing. On 02.01.2012, Varis Ali received a message from
police about finding of unidentified dead-body of minor child.
He identified the dead body in morgue as that of his missing
daughter. On 03.01.2012, Varis Ali learnt that a person
working in advertising firm in his area caused death of small
girl and had disposed of her body in Sambhaji Nagar area. He
gave that information to police and then accused no. 1 Nazir
was arrested on 03.01.2012.
5. Initially, A.D. No. 1 of 2012 was recorded and after
Varis Ali informed that some abnormal incident occurred in
gala near his house and after arresting suspected Nazir, after
investigation the police filed charge-sheet under Sections 302
and 201 of IPC.
6. Varis Ali had learnt that in an abnormal incident in
gala a dead body of minor girl was found and Nazir Khan, who
worked in that gala had disposed of that body on Western
Express Highway near Sambhaji Nagar, Vile Parle, Mumbai.
He, therefore, suspected that Nazir Khan had murdered his
daughter and had lodged report accordingly against Nazir
Khan and his employer i.e. accused no. 2. Employer was
manufacturing advertising boards in that gala.
7. It appears that charge-sheet under Sections 302 and
201 of IPC was filed on 30.03.2012. Varis Ali then filed Writ
Petition No. 372 of 2012 in High Court pointing out faulty
investigation and this Court on 01.08.2012 disposed of that
petition with direction for further investigation. After further
investigation, second charge-sheet was filed on 04.02.2013
when Section 376 of IPC was added alongwith Sections 3 and
4 of the POCSO Act and Section 109 of IPC. It appears that
first post-mortem of the victim was conducted by PW 20 Dr.
Pankaj Gajare and post-mortem report given by him is at Exh.
74. This doctor on request of police on 15.09.2012 also issued
a certificate at Exh. 75.
8. Because of High Court's directions second opinion
report was obtained and PW 22 Dr. Bhalchandra Chikhalkar
has been examined to prove it. Expert opinion provided by
him is at Exh. 83. This opinion shows that injury seen in
vagina and anus of victim might have been caused because of
sexual assault. It also mentions that the mark of injuries on
neck and injury on jaw may be due to strangulation of neck
and closing of nose and mouth. This certificate also states
that death may have occurred 12 to 36 hours before
postmortem.
9. It is on the basis of this material and witnesses
examined by prosecution to bring home the charge that
impugned judgment has been delivered.
10. We have heard arguments of learned APP Ms. M. M.
Deshmukh for the State, Dr. Y. M. Chaudhary for the accused-
Nazir and Mr. Manwani for the accused-Vinod in appeal.
11. Advocate Shri Chaudhary submits that material on
record does not show any death caused by strangulation or
any rape or any other offence of physical violence. He relied
upon post-mortem report submitted by Dr. Gajare for this
purpose. He points out that smear obtained from anus of
victim is found not to contain any male DNA by Chemical
Analyzer. The body was decomposed and injuries to external
genital are found to be due to decomposition. The postmortem
report does not find any injury in neck and does not
show any culpable homicide at all.
12. The report of the Expert PW-22 Dr. Chikhalkar is
objected to by him on the ground that said expert has not
seen the body at all. Victim was a Mohammedan person and
hence as per law, body could have been exhumed and
examined again. This doctor or then experts allegedly
accompanying him, have looked into only photographs and
arrived at their findings at Exh. 83. Evidence of Doctor (PW-
22) does not show any exercise of deliberation or discussion
with experts and hence Exh. 83 is not duly proved or
established. Learned counsel submits that in the wake of postmortem
report at Exh. 74 or then certificate at Exh. 75 issued
by Dr. Gajare, it was incumbent for Experts to record reasons
for arriving at a different opinion. Section 51 of the Indian
Evidence Act obliges them to give such reasons and in
absence of such reasons, mere opinion expressed by them
can not substitute Exh. 74.
13. Inviting attention to letter Exh. 75, he points out that
photographs were not clear and on the basis of such defective
photographs, PW-22 Dr. Chikhalkar has given a contrary
opinion. He, therefore, contends that report at Exh. 83 is liable
to be discarded.
14. Without prejudice he has read out Exh. 83 to submit
that it does not give any firm opinion and conviction cannot
be passed upon it.
15. He points out the long rope given by trial court to
prosecution while examining PW-22 and various opportunities
given by trial court to PW-22. He also relied upon crossexamination
of PW-22 to urge that his evidence does not
establish strangulation in any manner as cause of death. He
further states that due to decomposition, prolapse of anus is
already noted and in absence of male DNA, sexual assault is
also ruled out.
16. According to him, investigating officer has also not
supported evidence of PW-22. The trial court has erred in
ordering conviction only because of doubts felt by PW-22.
17. He invites attention to statement of accused under
Section 313 of Cr.P.C.. He points out that while answering
various questions like questions nos. 218, 219, 222, 223 and
224 etc. accused no. 1 Nazir has pointed out that the body of
child was found by him lying dead below plywood. Plywood
stored there had fallen on body of child. Advocate Chaudhary
relied upon evidence of PW-15 to show size and weight of
plywood. Huge plywood sheet, therefore, hurt/crushed child
aged about 4 years and Nazir, thereafter to avoid any
untoward attack on him or on his employer's establishment,
attempted to dispose of body. As nobody has not committed
any offences, his attempt was not to screen anybody and,
therefore, Section 201 of IPC is also not attracted.
18. Learned counsel appearing for the accused no. 2
Vinod submits that accused no. 2 was not even in town at the
relevant time and necessary facts are brought on record by
examining Manager Krishna PW-18. Even PW-7 Mohammad
supports innocence of Vinod in the matter. He submits that
deposition about instructions allegedly given by Vinod to Nazir
by him is hearsay and cannot be relied upon. He, therefore,
claims that conviction of accused no. 2 in the matter is
unwarranted and arbitrary. He points out that material on
record shows that accused no. 2 was informed about a girl
getting hurt and he was not informed about any death or then
about attempt to dispose of the body.
19. Learned APP submitted that here conviction of both
accused is based on circumstantial evidence, presence of
victim in godown (gala) is not disputed by them. Fact that she
died in said block is also not in dispute. The answers given by
accused no.1 Nazir to questions during Section 313 of Cr.P.C.
examination accept the role of both the accused persons and
hence, there is nothing wrong with the judgment of trial court.
The plywood board which was sold to a bhangar purchaser
Rawabali Khan (Exh. 15) shows that it could not have caused
death of victim.
20. Learned APP relies heavily upon order of High Court
dated 01.08.2012 and submits that evidence of PW 22 Dr.
Chikhalkar proves report at Exh. 83. This report is by three
experts and hence, the post-mortem report at Exh. 74
becomes insignificant. The report at Exh. 83 indicates cause
of death, its probable time and also points out sexual assault.
21. Our attention is invited to the report of Chemical
Analyzer (Exh. 62 Colly) to show that black coloured plain
tericot cloth piece at Exh. 1 and Exh. 2 forwarded by police
are analyzed and Exh. 1 which was wrapped on neck of
deceased is found to be matching with Exh. 2. According to
her, therefore, the fact that black colour netted cloth around
the neck of deceased was from establishment of accused, is
also conclusively established.
22. She has taken us through deposition of Investigating
Officer Mr. Shantilal Bhamare (PW 21) to urge that after High
Court orders, he has carried out re-investigation and in it has
found material against both the accused persons.
23. In brief reply in respect of learned counsel for
accused no.1 and accused no.2 urged that Exh.83 cannot be
looked into, it does not contain any definite opinion and also
lacks reasons to enable one to overlook earlier post-mortem
report. The opinion of Dr. Gajare PW 20 who had actually
seen the body, has to prevail.
24. Commending upon Section 201 of IPC, it is reiterated
that intention to screen real culprit needs to be established.
The convict under Section 201 of IPC, therefore, must possess
knowledge that some offence has been committed earlier.
Here accused no.1 Nazir does not have any such knowledge
and answers given by him did not point any culpable
homicide. Accused no. 1 only points out an accidental death.
Accused no.2 was not in town and, therefore, was not aware
of an offence or even nature of accident. His conviction under
Section 201 of IPC is perverse.
25. Both counsels relied upon evidence of Investigating
Officer PW 19 Shri Sawant, evidence of PW 1 Varis Ali and
evidence of scrap purchaser PW 15 Rawabali Khan.
26. Learned Advocate Chaudhary relies upon judgment
reported at AIR 1952 SC 354 – Palvinder Kaur vs. State
of Punjab particularly paragraph 14 to show that Section 201
of IPC becomes relevant when accused is shown to have
knowledge of commission of some offence and proceeds to
screen offender therein.
27. He sites (2013) 5 SCC 762 – Vinay Tyagi vs.
Irshad Ali Alias Deepak and Ors. paras 41 and 42 to urge
that earlier charge-sheet presented by Investigating Officer on
30.03.2012 cannot be ignored. (1997) 7 SCC 156 –
Tanviben Pankajkumar Divetia vs. State of Gujarat
paras 34,35 and 38 are relied upon to submit that opinion of
doctor who has seen the body needs to be preferred over the
opinion of doctor who has not seen the body. (1999) SCC
Online Bom 858 – Dhanaji @ Dhanraj Bagwan Jagdhane
vs. The State of Maharashtra paras 39 and 40 is relied
upon to submit that if in such a situation two opinions are
possible, one which favours accused needs to be accepted
and acted upon.
28. While answering the Court question, learned counsel
for the accused invite attention to provisions of Section 39
and Section 76 of IPC to show that alleged omission on the
part of Nazir to inform accidental death does not constitute an
offence at all. Learned Advocate Shri Chaudhary submits that
though the police investigation revealed no offence and even
evidence adduced in Court does not make out any offence,
here the State Government/Police has abused its powers. The
victim was aged about 23 years, when alleged offence took
place and is in custody since 03.01.2012. He is in solitary
confinement after the delivery of judgment dated 23.03.2016
and has thus put in three years there. According to him an
innocent person has been made a scapegoat and his future
has been spoiled in the process. He, therefore, seeks
compensation from State. He relies upon judgment reported
in (1985) 2 Bom.C.R. 518 - Surendrasingh B. Saud and
ors. Vs. The State of Maharashtra paras 26, 31, 32 and
the judgment dated 06.07.2018 in Criminal Appeal No. 812 of
2008 of Gwalior Bench of Madhya Pradesh High Court.
29. Learned APP submits that the trial court has
sentenced accused no.1 Nazir to death penalty and postmortem
report at Exh. 74 itself shows that the anal opening
had widened, thereby sexual assault has been established. In
this situation, belated arguments and demand for
compensation should not be looked into by this Court. She
adds that victim might have been alive also when Nazir
allegedly first found her and a timely report to police by him
would have saved her.
30. The consideration of present controversy can
conveniently commence by pointing out answers given by the
accused no.1 Nazir during Section 313 Cr. P.C. examination.
While answering question no. 20, he has stated that incident
of death of girl occurred in shop. He, however, denied that he
had concealed her in the godown. While answering question
no.21, he accepted that he had shown the body of girl to PW7
Asif. This answer, therefore, shows that accused no. 1 Nazir
accepted that he took PW 7 to mezzanine floor and there with
the help of torch in mobile, he did show the body of small girl.
Accused, however, has claimed that he had not seen the
colour of cloths on the person of that girl or then cloth around
her neck. Question no. 22 shows that PW 7 after seeing body
got frightened and advised Nazir to call accused no. 2 Vinod
immediately. Accordingly, Nazir had a talk with accused no. 2
Vinod and then accused no. 1 informed PW 7 Asif that accused
no. 2 Vinod had instructed accused no. 1 to dispose of body of
girl. He also told PW 7 Asif that Vinod inquired whether Asif
had arrived and accused no. 1 had told Vinod that Asif did not
come there. Vinod then advised Nazir not to disclose anything
to PW 7 Asif. All these facts are accepted to be true by
accused no. 1.
31. Answer given by Nazir to question no. 23 shows that
PW 7 Asif told Nazir to come alongwith him to police station
but Nazir refused. Asif told Nazir to handover body of girl to
her parents but then Nazir told Asif that father of victim was
kasai (Butcher) and would kill Nazir. After sometime, two
helpers Sadam and Azad arrived in godown. Sadam and
accused Nazir then cleared the godown floor while Asif went
away alongwith Azad. Accused Nazir has accepted this to be
true. While answering question no. 26, accused no. 1 Nazir
accepted that PW 8 Shankar Prasad was driving tempo which
was means of transport used by his employer. In question no.
27, evidence of PW 8 Shankar Prasad that on 01.01.2017, he
reached godown at 07.30 p.m. and there accused Nazir and
one more person from godown loaded one box in his tempo,
that box was totally packed, Nazir was sitting on front seat
and told PW 8 that box contained sample to be shown to the
client is put to Nazir. Accused Nazir accepted all these facts to
be true. He, however, had stated that box was not completely
packed but it was open. His affirmative answer to question no.
28 shows that tempo then proceeded towards Life Style Mall
at Mulund. Accused Nazir and one new boy sat in tempo, they
reached Nirmal Life Style Mall at about 09.30 p.m. and four
boxes were unloaded there. This fact is again accepted to be
correct by Nazir. Answer given to question no. 30 explains the
fact that as per request made by Nazir, PW 8 Shankar Prasad
dropped him and one box loaded earlier in godown at Andheri
Highway Hanuman Road Bus Stop, Vile Parle at about 10.30
p.m.. While answering question no. 43, Nazir accepted that he
left the dead body of girl at Vile Parle Highway. He also
accepted statement made to PW 19 Suryakant Sawant, Senior
P.I. regarding the place where he had kept the dead body.
While answering question no. 50, accused Nazir accepted that
he kept the box on Vile Parle Highway but denied that Sadam
was with him at that time or then he had removed plastic
which was rapped on the box. While answering last question
no. 57, he has stated that girl died due to fall of heavy
plywood on her body. When he saw her under plywood
outside the godown, he took that girl in the godown, put the
water on her face and she appeared to be dead, he became
afraid of people. He, therefore, kept her dead body at Vile
Parle. He claims that he was involved in a false case. These
answers given by him, therefore, show that the girl met with
an accident and her body was seen by him outside the
godown. He then took that body inside the godown at
mezzanine floor and concealed it. He has shown that body to
PW 7 Asif and then he disposed of the body by putting it on
highway at Vile Parle/Andheri. For this purpose, he used
tempo of PW 8.
32. It is now necessary to examine what is the cause of
death of girl as per prosecution & whether it stands proved. To
bring this on record, prosecution has relied upon post-mortem
report at Exh. 74 and evidence of Dr. Gajare PW 20. It has also
relied upon evidence of PW 22 Dr. Bhalchandra Chikhalkar and
the report of Experts at Exh. 83.
33. The Eeidence of first doctor who conducted the postmortem
of deceased viz. Dr. Pankaj Gajare (PW 20) shows that
he has conducted post-mortem of victim girl on 02.01.2012
and she was aged about 8 years. He found traumatic
asphyxia (natural) to be the cause of death. He deposed that
death was possible due to accident or homicide. His report of
post-mortem is at Exh. 74. His cross-examination reveals that
there were no external injuries on the body and there were no
injuries on her private part. There was no evidence of sexual
assault and there was no evidence of strangulation. There
were no fracture injuries on her neck bone. He accepted that
traumatic asphyxia can be caused due to the pressure on
chest. He also accepted that if heavy weight falls on a person,
death can be caused. He stated that as requested by A.C.P.
vide letter dated 10.09.2012, he issued certificate at Exh. 75
on 15.09.2012.
34. This certificate at Exh. 75 reveals that Dr. Gajare has
issued it after going through post-mortem report, perusing
photographs which were not very clear, chemical analysis
report and HB report, a spot visit to crime scene and after
considering circumstances surrounding death. Police sent this
letter on 10.09.2012 i.e. almost ten months after the incident
and this certificate Exh. 75 is issued five days thereafter. It
shows absence of any ligature mark or injury mark on neck. It
also mentions that deceased had worn black duppata as seen
in photographs. It is important to note that the inquest report
Exh. 36 dated 02.01.2012 mentions a black ribbon and not a
duppata. Doctor has invited attention to findings in column 15
of post-mortem report and reiterated that no injury to cervix
and vagina and to anal opening was seen. He has added that
body was in a decomposing stage. He has further mentioned
that no evidence of sexual assault was noted in post-mortem
examination. In paragraph 3 of this certificate, he has
explained the reasons for froth or liquid oozing from body. He
has also stated that death may have occurred 36 to 46 hours
before receipt of the body in morgue and there was no injury
mark over and around nose and mouth. There was no injury
mark, external as well as internal over neck region. His
remark in column 15 of post-mortem report shows that there
was rectal collapse, and vagina & cervix were soft and
swollen. Anal mucous had loosened, soft and anal opening
had widened perhaps due to decomposition changes. He had
preserved anal smear. Report of the Chemical Analyzer on this
anal smear at Exh. 68 (collectively) shows that no male DNA
is detected in it.
35. Other doctor who has been examined by prosecution
is PW 22 Dr. Chikhalkar. In his examination-in-chief, he has
spoken of second opinion and that opinion is at Exh. 83. Exh.
83 is communication addressed to A.C.P., Shri Bhamare (PW
21). It is on the subject of sexual assault on deceased and it
mentions letter dated 31.07.2012 sent by said A.C.P.. This
certificate Exh. 83 is signed by PW 22 and his two other
colleagues. It appears that four questions were put before the
Board of Experts which presumes or presupposes an injury on
neck and jaw and at vagina and anus. These questions,
therefore, overlook the categorical findings in post-mortem
report Exh. 74 that there were no external or internal injuries.
The Board has opined that injury on neck and jaw may be
caused due to pressing of neck and/or due to closing of mouth
and nose. Board has also opined that possibility of sexual
assault leading to injury in anus and vagina, can not be
denied. While answering question no. 3, the Board has
mentioned that those symptoms may be on account of violent
asphyxial death. These experts have mentioned that death
may have occurred 12 to 36 hours before the post-mortem.
36. These experts, therefore, have not conducted the
fresh post-mortem and Exh. 83 contains only answers to
questions put by Investigating Officer. These three doctors
who have signed Exh. 83 obviously after 31.07.2012 had no
reason and occasion to watch the dead body. Two of them
have not been examined by the prosecution.
37. If, PW 21 ACP had already received this Exh. 83, there
was no reason for him to send the letter on 10.09.2012 to Dr.
Pankaj Gajare and to obtain certificate at Exh. 75 dated
15.09.2012 from him. Certificate dated 15.09.2012 militates
with Exh. 83 issued by Experts. It is to be noted that High
Court disposed of Writ Petition No. 372 of 2012 on 01.08.2012
and Certificate Exh. 75 was sought thereafter. Information in
Exh. 83 was sought from Dean of J.J. Hospital on 31.07.2012.
This inconsistency or incongruency in stance of Investigating
Officer, therefore, cannot be understood.
38. Report at Exh. 83 is prepared by Experts who had no
occasion to see body. The trial court is permitted prosecution
to conduct examination-in-chief of PW 22 Dr. Chikhalkar at
some length on different dates. In paragraph 12, this witness
stated that alongwith letter dated 27.07.2012 sent by police,
he got photographs of post-mortem and post-mortem report.
Only on perusal of these documents, he gave his opinion and
he had not gone beyond it. He further stated that because of
photographs only he gave opinion regarding asphyxia due to
strangulation and possibility of rectal penetration. He has not
stated anywhere that post-mortem report at Exh. 74 was
incorrect. His deposition does not show that three experts
shown as privy to Exh. 83 deliberated and then recorded their
findings jointly. On the contrary, paragraphs 12, 13 and 15 of
his deposition show it to be his personal view and exercise. He
has in cross-examination, in paragraph 5, accepted that
violent asphyxia can be caused due to crushing due to
accident. This witness also accepted that he had not
personally examined the dead-body of victim girl. According
to him, Exh. 83 is submitted to I.O. on 11.09.2012.
39. Law on the point needs brief mention at this stage.
Probative worth of expert evidence is explained in paragraph
254 by the Hon. Apex Court in State of Karnataka v. J.
Jayalalitha, (2017) 6 SCC 263, at page 535, as under
--“254. In re the probative worth of experts evidence, a host
of decisions in Mahmood v. State of U.P., Chatt Ram v. State
of Haryana, State of H.P. v. Jai Lal, Ramesh Chandra Agrawal
v. Regency Hospital Ltd. and Dayal Singh v. State of
Uttaranchal have been cited at the Bar. As all these decisions
postulate identical propositions, the gravamen of these
authorities would only be referred to avoid inessential
prolixity. These renderings explicate that an expert is one who
has made a subject upon which he speaks or renders his
opinion, a matter of particular study, practice or observation
and has a special knowledge thereof. His knowledge must be
within the recognised field of expertise and he essentially has
to be qualified in that discipline of study. It has been
propounded that an expert is not a witness of fact and his
evidence is really of an advisory character and it is his duty to
furnish to the judge/court the necessary scientific criteria for
testing the accuracy of the conclusions so as to enable the
judge/court to form his/its independent judgment by the
application of such criteria to the facts proved by the
evidence. Referring to Section 45 of the Evidence Act, 1872,
which makes the opinion of an expert admissible, it has been
underlined that not only an expert must possess necessary
special skill and experience in his discipline, his opinion must
be backed by reason and has to be examined and crossexamined
to ascertain the probative worth thereof. That it
would be unsafe to convict the person charged on the basis of
expert opinion without any independent corroboration has
also been indicated. It has been held that the evidentiary
value of the opinion of an expert depends on the facts upon
which it is based and also the validity of the process by which
the conclusion has been reached. The decisions underline that
the court is not to subjugate its own judgment to that of the
expert or delegate its authority to a third party but ought to
assess the evidence of the expert like any other evidence. In
State of H.P. v. Jai Chand, (2013) 10 SCC 298 , Hon. Apex
Court observes in para 21 that the post-mortem report is not
a substantive piece of evidence. But the evidence of such
doctor cannot be insignificant. Apex Court in State of Haryana
v. Ram Singh held as under: (SCC p. 429, para 1)--“1. While it
is true that the post-mortem report by itself is not a
substantive piece of evidence, but the evidence of the doctor
conducting the post-mortem can by no means be ascribed to
be insignificant. The significance of the evidence of the doctor
lies vis-Ã -vis the injuries appearing on the body of the
deceased person and likely use of the weapon therefor and it
would then be the prosecutor’s duty and obligation to have
the corroborative evidence available on record from the other
prosecution witnesses.”
40. We have commented on contents of Exh. 83 above. It
does not show any definite opinion as to cause of death or
about sexual assault on deceased. It only points out
possibilities. It appears that these experts were not required
to comment on correctness or otherwise of Exh. 74 or Exh. 75
and hence, there are no reasons recorded as required by
Section 51 of Indian Evidence Act. From Secion 46 of the
Evidence Act it is clear that the facts bearing upon opinion of
experts are germane. It lays down that facts, not otherwise
relevant, are relevant if they support or are inconsistent with
the opinions of experts, when such opinions are relevant. If
Ex. 83 is relevant, it can not become decisive unless it with
reasons, counters the details noted in postmortem report at
Ex. 74 or certificate at Ex. 75. As per Section 51, whenever
the opinion of any living person is relevant, the grounds on
which such opinion is based are also relevant. Ex. 74 & 75 are
based upon the facts noted therein and are supported by
evidence of Dr. Gajre who conducted the postmortem. Dr.
Chikhalkar or the Board which issued Ex. 83 does not counter
the deposition of Dr. Gajre or Exs. 74 & 75. His evidence does
not counter with reasons Ex. 74 or 75. Ex. 51 only answers
queries of the investigating officer but does not support those
answers with any grounds. The answers are also based upon
factually wrong premise. In view of this position, it is not
necessary for us to examine whether after cross-examination,
trial court was justified in permitting prosecution to reexamine
PW 22 Dr. Chikhalkar and whether it was used to fill
in any lacunae.
41. Judgment of Hon’ble Apex Court reported in (1997)
7 SCC 156 – Tanviben Pankajkumar Divetia vs. State of
Gujarat shows that in case of any dispute or doubt, the
opinion of doctor who has seen the dead body needs to be
preferred. The contrary view has to point out why the
conclusions of a doctor who recorded the same after
conducting actual postmortem, are wrong. Similarly,
judgment of this Court reported at (1999) SCC Online
Bombay 858 – Dhanaji @ Dhanraj Bagwan Jagdhane vs.
The State of Maharashtra shows that in case of difference
of opinion and doubt in such matters, benefit has to go to
accused.
42 Here the post-mortem report at Exh.75 and evidence
of Dr. Gajare PW 20 rules out any sexual assault on deceased.
It does not show any homicidal death and points out
traumatic asphyxia (natural) as cause of death. This doctor
had accepted that such traumatic asphyxia can be caused
due to pressure on chest. His conclusions are backed by the
observations during actual process of the postmortem. Exh.
83 does not in any way militate with categorical findings
therein. At Exh. 75, the Experts while answering question nos.
1 and 2 have acted on findings of injury marks or injuries on
body part, though they had no occasion to see the body of
deceased at all. They have expressed possibility of
strangulation and there is no definite opinion about it.
Similarly, they have not categorically recorded any findings
on sexual assault. We, therefore, find that this document and
deposition on record does not support a conclusion of death
caused due to strangulation or closing of nose and mouth. It
does not support theory of any sexual assault on deceased.
43. It is to be noted that accused was arrested on
03.01.2012 from the place where he was working and it is not
the case of prosecution that any injury was found on his
palms or other body parts to support the theory of homicide
or sexual assault.
44. At this stage, it will be important to note that the
Inquest Panchnama of deceased was conducted on
02.01.2012 between 13.35 hours to 14.45 hours. This
Panchanama Exh. 89 while describing clothes on the person of
deceased states that there was a black ribbon. It does not
mention any black cloth around neck. It also shows age of
deceased to be 7 to 8 years. It mentions that the body was
not having any external injuries even on private parts.
45. This Panchnama at Exh. 36, therefore, supports
evidence and post-mortem by Dr. Gajare and his findings in
Exh. 74 that there were no external injuries on the body.
Manipulation if any, could have commenced only after
accused persons were traced out and on 02.01.2012 when
Exh. 36 was drawn, there was no question or scope of
therefor.
46. The investigation shows disclosure by accused no. 1
Nazir that it was accidental death. Investigating Officer either
before orders of High Court or then after orders of High Court
has not taken any steps to rule out the accident. The
Panchnama Exh. Nos. 60 and 60-A show the memorandum
under Section 27 of Evidence Act about wooden box used by
Nazir to move the body out of godown and its seizer. There,
the godown blocks(gala) mentioned are E-3 and A-4. Size of
block mentioned is 70 ft. x 35 ft. with mezzanine floor of 45 ft.
x 35 ft. Thus, the alleged accident if any, took place in or near
this godown.
47. Evidence of PW 15 Rawabali Khan shows that he
purchased from accused Nazir wooden scrap worth Rs.300/-.
He had purchased four pieces of plywoods. He identified those
four pieces produced in Court as the same. His crossexamination
reveals that each piece was approximately 8 ft. x
3 ft and weighing about 9 kilograms. Question whether these
pieces or any of them were standing inside the godown or its
vicinity to support story of an accident has not been answered
by prosecution on record. Whether, its fall on body of
deceased child could not have resulted in death is also not
answered anywhere. This question was not put either to PW
20 Dr. Gajare and then to PW 22 Dr. Chikhalkar. The
Investigating Officer has not completed the investigation
consistent with the requirements of law relating to
circumstantial evidence. The prosecution is relying upon
circumstantial evidence only and answers given by accused
Nazir during investigation and also in his Section 313 Cr.P.C.
examination. Whether that material is sufficient to rule out
accidental death or absence of rape, has remained
unanswered.
48. In a case based upon circumstantial evidence, the
prosecution has to indicate a chain of circumstances which is
so complete that it does not permit implication of any other
person except accused. Chain has to, therefore, unerringly
point at accused only as the person responsible for the
ofence. It has also to rule out involvement or possibility of
involvement of any other person. As already noticed supra,
we have found that the post-mortem report Exh. 74,
certificate at Ex. 75 or then report of Experts at Exh. 83 does
not support the prosecution in this respect. The material on
record does not record a finding of rape, also do not show a
culpable homicide and do not rule out an accidental death.
Investigating Officer, therefore, has left the material lacunae
in the entire exercise and that has not been rectified even
after directions dated 01.08.2012 issued by this Court in Writ
Petition No. 372 of 2012.
49. Though judgments cited before us show that earlier
charge-sheet cannot be totally discarded, in present facts, we
do not find it necessary to dwell more on Vinay Tyagi vs.
Irshad Ali Alias Deepak and Ors. reported in (2013) 5
SCC 762. Similarly, though judgment shows that precedece
is to be given to opinion of doctor who has seen body of
deceased, or then in case of two conflicting expert opinions,
benefit must go to accused, in present facts, it is not
necessary for us to consider even those judgments in more
details. The report of Forensic Laboratory on identity of cloth
found with body of deceased and similar cloth taken from
establishment of accused no. 2 employer does not, therefore,
assist the case of prosecution. We have already noted supra
that at inquest, a black ribbon was found with the body and it
does not mention that black ribbon was tied around the neck
of deceased. There is no mention of any “dupatta”. There is,
therefore, no legal evidence to convict accused no. 1 Nazir
either under Section 376 or Section 302 of Indian Penal
Code. .
50. This brings us to consideration on offence under
Section 201 of IPC. Answer to question 22 by accused no. 2
Vinod shows that he had directed accused no. 1 Nazir to
inform the incident to parents of victim and to call doctor for
immediate aid. Investigating Officer Shri Sawant in crossexamination
states in paragraph 11 that PW 18 Krishna who
happens to be Business Development Manager of accused
no.2, had told that victim died as plywood sheet fell on her
person. His further cross-examination shows that upon
instruction given by accused no. 2, Manager in his
establishment Pallavi Jaykar came to police station at about
8.30 p.m. to 9.00 p.m. on 02.01.2012 and I.O. recorded her
statement. In that statement, she disclosed that accused no.
2 employer had asked her to report the incident to police.
51. PW 18 Krishna has in his cross-examination stated
that he got knowledge of incident on 02.01.2012 and
accordingly, he communicated it to police. He has also stated
that accused Vinod was out of station on 02.01.2012. PW 7
Mohammad Shaikh who worked as a Supervisor states that at
about 3.30 p.m. on 01.01.2012, he got knowledge of accident
from accused no. 1 Nazir. This evidence is already discussed
by us above.
52. This material, therefore, shows that accused no. 2
was not present in establishment/godown at the time of
incident or immediately thereafter and he had given
necessary instructions to his Business Development Manager
PW 18 and to Manager Pallavi Jaykar. Accordingly, Pallavi
Jaykar had also gone to Investigating Officer. Material does
not support his role in removal of body or sale of plywood
sheets.
53. The relevant provisions contained in Indian Penal
Code and Criminal Procedure Code need to be perused to find
out whether accused no. 1 or accused no. 2 had violated any
legal provision and thereby have committed an offence under
S. 201 IPC.
54. Section 39 of Cr.P.C. casts obligation upon public to
give information of certain offences. Section 39(1) in its
clauses I to XII mentions various Sections of IPC and thus any
member of public not reporting any of said offence without
reasonable excuse can be said to have violated obligation
imposed upon him under this section. Clause V mentions
offences under Sections 302, 303 and 304 of IPC. To this
clause, the Parliament has added (“offences affecting life”).
Thus, general member of public not concerned with such
offence affecting life, is also under obligation to give
intimation to police officer, if he is aware of its commission.
55. Our attention was also invited to Section 176 of
Cr.P.C. However, that section is regarding inquiry into cause of
death which takes place in situations contemplated in S. 174
which appears to be material here. It shows that after the
receipt of information that a person has committed suicide, or
has been killed by another or by an animal or by machinery or
by an accident, or has died under circumstances raising a
reasonable suspicion that some other person has committed
an offence, the police officer is required to be processed as
stipulated therein. Police officer getting it has to immediately
give intimation thereof to the nearest Executive Magistrate
empowered to hold inquests, and, unless otherwise directed
by any rule prescribed by the State Government, or by any
general or special order of the District or Sub-Divisional
Magistrate, to proceed to the place where the body of such
deceased person is, and there, in the presence of two or more
respectable inhabitants of the neighbourhood, has to make an
investigation, and draw up a report of the apparent cause of
death, describing such wounds, fractures, bruises, and other
marks of injury as may be found on the body, and stating in
what manner, or by what weapon or instrument (if any), such
marks appear to have been inflicted. This report is to be
signed by such police officer and other persons, or by so
many of them as concur therein, and forthwith forwarded to
the District Magistrate or the Sub-Divisional Magistrate. We
need not here refer to other subsections of this Section but
special care is envisaged when such death is of a woman or
when circumstances appear doubtful. It shows the care &
precaution to be taken by the Police and the State, when the
death is not natural. Here the death is of minor girl & it is also
not natural. No person aware of such death or incident
resulting into it, can suppress its knowledge from the Police or
try to expunge it altogether. Law does not enable such
person failing to intimate to claim that the death was a pure &
simple accident and nobody was negligent in it. It is the
obligation of the police officer to investigate & report on the
cause & nature of incident. S. 176 envisages a parallel
inquiry by the Judicial Magistrate or the Metropolitan
Magistrate or Executive Magistrate in certain circumstances
as specified therein.
56. Section 32 of Indian Penal Code specifically states that
words employed in Penal Code which referred to acts done
extend also to illegal omissions. Section 33 clarifies that
series of acts and series of omissions are to be treated as
single act or single omission. Section 35 points out liability of
each person who joins in the act with knowledge or intention
that the act is being done with criminal knowledge or
intention. Section 36 stipulates the effect caused partly by act
and partly by omission. Section 39 points out when a person
can be said to cause an effect voluntarily. Section 40 defines
what is an offence. A thing made punishable under Penal
Code is, defined as offence for the purpose of Chapter IV and
V-A and in relation to sections specified in first paragraph of
Section 40, “offence” also includes a thing made punishable
under a special or local law as defined therein.
57. A brief mention of certain provisions in chapter 4 of
IPC dealing with General Exceptions is necessary. Section 76
excepts act done by person bound or by mistake of fact (not
by mistake of law) believing himself to be bound by law from
the concept of offence. Section 79 similarly, excepts act done
by person justified or by mistake of fact (not by mistake of
law) believes himself justified by law. Section 80 excepts
accident in doing a lawful act from concept of offence. Section
81 also excepts an act which is likely to cause harm when it is
done without criminal intent and to prevent harm to other.
The riders or limitations in which such exceptions are made
applicable show requirement of good faith or absence of
criminal intention etc. It is therefore apparent that the
legislative provisions dealing with the “act” or “omission”
contain a scheme & it covers all such acts or omissions which
are “offences”. General exceptions therefore exclude only
such “acts” as are specified therein for the obvious lack of any
malice in it. Excepted acts are therefore undertaken bonafide
& there is no dishonest intention right from inception till end.
58. Section 43 is an important section and it defines the
word “illegal” and phrase “legally bound to do”. The manner
adopted to explain these concepts is rather peculiar. This
Section 43 reads as under:--
“43. “Illegal”, “Legally bound to do” -
The word “illegal” is applicable to everything which
is an offence or which is prohibited by law, or which
furnishes ground for a civil action; and a person is
said to be “legally bound to do” whatever it is
illegal in him to omit.”
59. Section 176 of Indian Penal Code is on subject of
omission to give notice or information to public servant by
person legally bound to give it. This Section makes such
omission an offence punishable with simple imprisonment for
a term which may extend to one month or with fine of
Rs.500/- or with both. If such information pertained to an
offence, the simple imprisonment may extend to 6 months or
fine may be Rs. 1000/.
60. Section 43 does not stipulate what is legal. It points
out act or omission which is illegal and obligation to report
flowing from “legally bound to do” needs to be construed in
that light. So an incident like accident leading to death of a
minor girl which may also sustain a civil cause, being viewed
as illegal, therefore, must be reported to police or concerned
competent authority. Omission to report it is illegal. Not only
Section 43 of Penal Code is widely worded but its Section 176
is also made equally wide by the legislature. Use of words
such as “any subject” or “information” in said section is in
consonance with spirit underlying Section 43. Owner or
occupier of a godown where accident occurs, therefore,
cannot avoid the obligation cast upon him by these
provisions. Any other person in that establishment present
legally there as an employee, who sees such an accident or
learns about it also cannot avoid the duty to report. Various
provisions in Penal Code noted by us supra including
“exceptions” carved out by legislature therein do not support
the contentions of accused that the omission to report an
accident resulting into death, is not an offence at all.
Machinery mandated under S. 174 Cr.P.C. can not be allowed
to be rendered nugatory. All unnatural deaths are covered
under provisions of IPC. Whether it is an offence or not, is for
the Investigating Officer to decide. Otherwise it will provide an
escape route for the offender and he may clean or destroy all
evidence under a specious plea that the un-natural death was
not an offence but an unfortunate accident for which he is not
liable. Such a loophole is not envisaged by the Legislature. If
the arguments on these lines are accepted, S. 304A IPC will be
rendered nugatory. S.176 IPC therefore employs the word “on
any subject”.
61. This brings us to Section 201 of Indian Penal Code.
This section is on the subject of causing disappearance of
evidence of offence or giving false information to screen
offenders. Its substantive part reads as under;
“201. Causing disappearance of
evidence of offence, or giving false
information to screen offender.- Whoever,
knowing or having reason to believe that an
offence has been committed, causes any evidence
of the commission of that offence to disappear, with
the intention of screening the offender from legal
punishment, or with that intention gives any
information respecting the offence which he knows
or believes to be false;”
62. As against Section 201, Section 202 is on intentional
omission to give information of offence by a person bound to
inform. Section 202, therefore, springs into effect after an
offence is already committed and there is failure to report it.
This section also employees the phrase “legally bound to
give”.
63. Section 299 (Explanation 2) of Indian Penal Code
states that whenever death is caused by bodily injury, the
person who causes such bodily injury is deemed to have
caused such death and it constitutes a culpable homicide.
Section 304 prescribes punishment, if such culpable homicide
does not amount to murder. Section 304-A prescribes
punishment for causing death by negligence.
64. Therefore, whether plywood sheets stored in the
godown of accused persons slipped and fell on the person of
deceased victim because of its negligent storing or then
because of some human act is the moot question which
needed investigation and answer. Unfortunately, in the
present matter Investigating Officer has not brought on record
any material in that respect. The situation has not undergone
any change even after order of this Court dated 01.08.2012.
65. Such an investigation also might not have been
fruitful because plywood sheets were already disposed of by
accused no. 1 Nazir to bhangar purchaser Rawabali Khan.
Provisions looked into by us particularly Section 43 of Indian
Penal Code shows that even when the consequences furnish a
ground for civil action, the person in knowledge is legally
bound to give information thereof to the competent authority
which may include the police Section 176 of the Code makes
omission to give information “on any subject” to any public
servant, an offence. In this backdrop, Section 201 of IPC gets
attracted and causing disappearance of evidence of offence
under Section 176 becomes punishable thereunder. Section
43, Section 176 and Section 201 of Indian Penal Code clearly
obliged first accused No. 1 Nazir before us to report the
incident to police and not to wipe it out altogether.
66. We have already found that accused no. 2 was out of
station and his involvement in an attempt to remove body of
victim or then wiping out evidence of untoward incident is not
proved. However, same cannot be said about accused no. 1
Nazir. It is he who has played key role. Witnesses examined on
record show his design & act to throw body at a distant place
so that nobody could have connected it with his work place.
His selling the plywood sheets to PW 15 Rawabali Khan shows
that he wanted to paint a picture that no untoward incident
whatsoever has occurred in his godown.
67. Whether death of victim was accidental or then it was
because of negligence warranting punishment under Section
304-A are the disputed questions. Whether death was
culpable homicide amounting to or not amounting to murder
also needed factual investigation. Accused no. 1 Nazir
attempted to render all this impossible and, therefore,
removed body of victim and the plywood boards.
68. Provisions noted by us supra and scheme thereof
show that accused no. 1 Nazir was legally bound to give
information to police about accidental death. The accidental
death may have civil consequences or penal effect. He could
not have avoided that investigation or to defeat it, he should
not have caused disappearance of evidence relating to it.
After jeopardizing that investigation, accused Nazir can not
take a plea that there was no “offence” involved in the
incident of death of victim. Being an employee legally present
in the establishment & having noticed the death of a minor, it
was his duty to report the accident or incident to the police
and to allow them to find out how the victim came below the
plywood sheets/s. Court has, therefore, rightly found him
guilty of offence punishable under Section 201 of Indian Penal
Code.
69. However, material on record does not show that trial
court was justified in holding accused no. 2 Vinod also guilty
under the said provision.
70. In this situation, we find that it is not necessary to
consider the arguments of Advocate Chaudhary on demand of
compensation. Accused no. 1 who has indulged in criminal
offence is declared not entitled to any such relief. Hence, case
law cited by Advocate Chaudhary on this issue also need not
be evaluated.
71. We have already noted supra that medical evidence
does not permit us to hold that there was any offence
punishable under Section 302 of Indian Penal Code or under
Section 376 of Indian Penal Code. Going by the story of
accused no.1, Investigating Officer ought to have attempted
to find out whether fall of plywood sheet/s on victim would
have resulted in her death. This would have needed
investigation into length, width and weight of plywood sheet
and whether only one or all three plywood sheets fell on
deceased. This would have also required scrutiny of a place
where those sheets were stored and mode and manner in
which they were placed. That investigation would have
brought on record whether sheets were secured properly so as
to avoid any accidental fall.
72. If sheets were stored outside godown and children
used to play in that area or frequented that area, whether
proper protection/precaution was taken to see that even
during such play or other activities of children, the sheet
would not fall/slip down. There is absolutely no investigation
in this respect. This absence of investigation is despite the
directions dated 01.08.2012 in Writ Petition No. 372 of 2012.
73. Father of deceased had approached this Court
promptly for proper investigation and steps taken by
Investigating Officer thereafter do not bring on record due
diligence. PW 22 Dr. Chikhalkar was consulted and on the
strength of vague opinion at Exh. 83, unsustainable charge
under Section 376 of IPC was added. Now, it is impossible to
find out the truth or the real incident. But omission to conduct
proper investigation despite directions of this Court definitely
entitles family of victim to reasonable compensation from
State Government. In the present facts, we find that grant of
amount of Rs.10,00,000/- (Rupees Ten Lakhs only) to her
parents for such lapse on the part of Investigating
Agency/Officer will meet the ends of justice. However, the
State shall recover that amount after proper inquiry and as
per procedure from Investigating Agency or Officer and/or
others found guilty of lack of diligence in the matter.
74. Accordingly, we proceed to pass following order;
(a) The judgment and order dated 28.03.2016
delivered by Special Judge, City Civil and Sessions
Court, Greater Mumbai convicting accused no. 1
Nazir for offences punishable under Section 302
and Section 376 of IPC is quashed and set aside.
(b) Conviction of accused no. 1 Nazir under
Section 201 of Indian Penal Code is, however,
maintained.
(c) If accused no. 1 Nazir has already
undergone rigorous imprisonment of seven years as
directed by trial court, he be set free forthwith, if
his custody is not required by State Government in
any other matter.
(d) Criminal Appeal No. 853 of 2018 filed by
accused no. 1 Nazir is thus, partly allowed.
(e) Conviction of accused no. 2 Vinod under
Section 201 of Indian Penal Code is set aside and
Criminal Appeal No. 293 of 2016 filed by him is
accordingly allowed.
(f) Bail bond furnished by accused no. 2 Vinod
is cancelled.
(g) We direct State Government to pay to the
parents of victim namely PW 1 Varis Ali and mother
of victim amount of Rs.10,00,000/- (Rupees Ten
Lakhs only) for negligent investigation into death of
their daughter on 01.01.2012.
(h) The State of Maharashtra shall recover that
amount after proper inquiry and procedure from
Investigating Officer and/or others found guilty of
lack of diligence in investigation.
(i) Muddemal property be dealt with as
directed by trial court after appeal period is over.
(j) Criminal Confirmation Case No. 01 of 2016,
Criminal Appeal No. 293 of 2016 and Criminal
Appeal No. 853 of 2018 are accordingly disposed of.
(PRAKASH D. NAIK, J.) (B. P. DHARMADHIKARI, J.)
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