JAVED ABDUL RAJJAQ SHAIKH versus STATE OF MAHARASHTRA

[2019] 14 S.C.R.

JAVED ABDUL RAJJAQ SHAIKH

STATE OF MAHARASHTRA

(Criminal Appeal No. 1181 of 2011)

NOVEMBER 06, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Penal Code, 1860 – s.302 r/w. s.34 and s.498A – Murder –Prosecution case was that the appellant and the other accusedcommitted murder of the wife of the appellant by throttling her –CThey were charged u/s.302 r/w. s.34 – Besides, they were alsocharged u/s.498A – Trial court convicted all the accused for offencesu/s.302 r/w. s.34 and s.498A – High Court acquitted all the accusedof all the offences except the appellant, he was convicted u/s.302 –Father of the victim/deceased alleged that the accused wereDmaltreating victim and were demanding half tola gold, dress andRs.5000/- for business purposes – Appellant contended that whenthe prosecution failed to establish the guilt of the other accused, inthe circumstances, it must be taken that prosecution also failed toestablish the case against the appellant u/s.302 simpliciter – It wasfurther contended that victim had committed suicide by hanging –EHeld: PW-4 deposed that few days before the incident appellantvisited her and demanded half tola gold, money and furtherthreatened to kill his wife in case of non-compliance with his demands– PW-3-father of the victim also spoke of the threat as conveyed byPW-4 and the same was believed by the two Courts – Further, HighFCourt rightly concluded that appellant and his wife had separateroom in the house and death had taken place around 3:30 a.m. inthe morning, therefore there was custodial death in which theappellant alone can be implicated – Both the Courts noted from thespot panchnama that the height of the room in which victim haddied was just 5ft 10 inches and it was again rightly concluded byGthem that the theory of hanging was incompatible by person ofnormal height or even if the height is 5ft – Further, provisionaldeath certificate was issued by two doctors stating probable causeof death was acute cardio respiratory arrest secondary to acute

asphyxia, secondary to throttling and provisional death certificatecorroborated the postmortem report – Therefore, evidence on recordclearly supported the case of throttling – No merit in the appeal –Appellant directed to serve the remaining sentence.

Medical Jurisprudence – Hanging, strangulation andthrottling – discussed.

Dismissing the appeal, the Court

HELD : 1. The evidence in this case clearly supports thecase of throttling. As far as the motive is concerned, there is theevidence of P.W.4 that few days prior to the date of incidentappellant had visited her and told her about not being given thehalf tola gold and money. She also deposed about being told bythe appellant that result of non-compliance with his demands wouldbe that he would kill his wife. P.W.3 has also spoken of the threatas conveyed by P.W.4. This has been believed in by two courts.[Para 38] [55-D]

2. Another circumstance which is found by the High Courtis that, as is natural, the appellant and his wife had separateroom, therefore, there was custodial death in which the appellantalone has been implicated. The death is found to have takenplace somewhere around 3.30 in the morning. The finding by theHigh Court is that by that time the appellant would be with hiswife. This cannot be described as manifestly erroneous.[Para 39] [55-E-F]

3. The post-mortem note indicates time of receipt of thebody as 3.15 p.m. on 10.3.2005. The post mortem is stated tohave begun at 3.30 p.m. on 10.3.2005 and ended at 4.45 p.m. on10.3.2005. It is stated to be done by P.W.1 medical officer and bythe other doctor. The date is shown as 25.8.2005 on the postmortem note. This apparently, is in tune with the deposition ofP.W.1 that other doctor was not available. At the same time, thisCourt notice that on said date 10.3.2005, there is provisionaldeath certificate which has been issued, according to P.W.1 him,to the police immediately. It is in the handwriting of the seconddoctor. He deposes that they have both signed on it and the

Acontents are true and correct. It is marked as Exh.23. In hiscross it is deposed by him that according to him police machineryimmediately demands provisional death certificate and when thecause of death is known after post-mortem they immediatelyissued the provisional death certificate. [Para 41] [55-H;56-A-C]B

4. It is inter alia certified by the two doctors in theprovisional death certificate that they have done the post mortemon 10.3.2005 and the probable cause of death seems to be acutecardiorespiratory arrest secondary to acute asphyxia, secondaryto throttling. The said certificate is dated 10.03.2005. There isCthe date, 25.08.2005 on the Post Mortem report. Also, the date10.03.2005 is shown against the Column-forwarded to the PoliceSub Inspector. But the reason appears to be that though PostMortem was conducted on 10.03.2005, it was signed by the doctoron 25.08.2005. Though it could be argued that the reason for theDdate 25.08.2005 is that one of the doctors was not available buthowever, on 10.03.2005, in the provisional death certificate howcould both the doctors have signed. It would appear from thereport that second doctor is the Medical Officer of Primary HealthCentre, and it is his non availability after the content were enteredin the Post Mortem report that led to report being delayed.EThough there is gap, this Court finds assurance from the factthat the provisional death certificate which is marked as Exh.E-23 and which is dated 10.03.2005 corroborates E-22 PostMortem. [Para 42] [56-E-H]

5. As far as the injuries in the Inquest report not beingFnoticed in the post-mortem report is concerned, there can nodoubt that the medical doctor knows exactly what medical injuriesare and ordinarily in case of inconsistency, the medical report ofthe doctor should prevail. Having regard to the post mortemand the evidence of P.W.1, the nature of injuries noticed asGexplained by the deposition of P.W.1 unerringly point to the deathbeing caused by throttling as opined by the doctor. Much maynot turn on the injuries which are alleged to have been noted inthe Inquest not being noted in the post mortem note. [Para 43][57-A-B]

Sawal Das v. State of Bihar (1974) 4 SCC 193 : [1974]3 SCR 74 ; Sukhram s/o Ramratan v. State of MadhyaPradesh (1989) Suppl. 1 SCC 214 ; Krishna GovindPatil v. State of Maharashtra AIR 1963 SC 1413 :[1964] SCR 678 – referred to.

Case Law Reference

[1974] 3 SCR 74referred toPara 61989 Suppl. (1) SCC 214referred toPara 6[1964] SCR 678referred toPara 35

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1181 of 2011.

From the Judgment and Order dated 23.07.2008 of the High Courtof Judicature at Bombay, Bench at Aurangabad in Criminal AppealNo. 641 of 2006.

D. N. Goburdhan, Adv. for the Appellant.

Anoop Kandari, Nishant Ramakantrao Katneshwarkar, Advs. forthe Respondent.

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. The appellant, calls in question, his conviction under Section302 of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’,for short) by the High Court. Originally, the appellant was accused no.1before the Trial Court. Accused nos. 2 to 4 were his parents and hisbrother. They were altogether charged with offence under Section 302read with Section 34 of the IPC. This is besides being charged underSection 498A of the IPC. The Trial Court convicted all the accused foroffences under Section 302 read with Section 34 and Section 498A ofthe IPC. On appeal filed by the appellant and the other accused, accusednos. 2 to 4 stand acquitted of all the offences. The appellant has alsobeen acquitted of the offence under Section 498A of the IPC. However,the High Court, by the impugned order, had convicted him for the offenceunder Section 302 of the IPC instead of Section 302 read with Section34 of the IPC. This is besides fine.

A2. The prosecution case, in short, is that the appellant and theother accused committed murder of the wife of the appellant. As alreadynoticed, the charge was of committing murder under Section 302 readwith Section 34 of the IPC.

3. The father of the deceased lodged complaint wherein it wasBinter alia alleged that the marriage of the appellant and his deceasedwife took place prior to two years as per custom. Half tola gold remainedto be provided. Due to poverty, he could not provide half tola gold. Theaccused maintained the deceased properly for the period of first eightmonths. Three months prior to the incident, the deceased disclosed tothe complainant and his wife that all the accused were maltreating theCdeceased by insisting her to bring half tola gold, dress and Rs. 5,000/-for business of bakery. They insisted her to bring this from her parentsand assaulted her. They did not provide food to her and maltreated her.She was threatened with murder if the demand was not fulfilled. So,deceased decided to stay with her father for two months. Within twoDmonths, nobody from the accused came to receive her. The deceaseddisclosed about the maltreatment to his sister. His sister convinced thedeceased and brought her to the house of the accused. Eight days priorto the incident, his sister informed him that accused Javed visited herhouse and demanded half tola gold, dress and the amount. On 10.03.2005,he received information by phone that deceased was serious and admitted

Eto hospital at Naldurg. The complaint activised the Police. Investigationwas done. Charge-sheet was filed. Charges were framed, as alreadymentioned. Rejecting the contentions of the appellant and other accused,the Trial Court convicted them. It was found that the deceased had beenthrottled. The evidence of the Doctor, supported the case of murder.

FThe claim that it was suicide by the deceased, was rejected.

4. The High Court, however, found only the appellant guilty underSection 302 of the IPC.

5. We have heard Shri D. N. Goburdhan, learned counsel for theappellant who appeared before us and also learned counsel for the State.G

6. Counsel for the appellant would submit that the case of theprosecution was one of commission of offence under Section 302 readwith Section 34 of the IPC. It was the case of the prosecution that allthe accused together committed the act of murder. He would complainthat in appeal, when the High Court found it fit to acquit accused nos.2H

to 4, the accused cannot thereafter be convicted. He drew our attentionto the judgment of this Court in Sawal Dasv. State of Bihar1 and Sukhrams/o Ramratanv. State of Madhya Pradesh2.

7. He would submit that when the prosecution failed to establishthe guilt of accused nos.2 to 4, in the circumstances of this case, it mustbe taken that prosecution has also failed to establish the case against theappellant as it would be the case under Section 302 simpliciter. He wouldsubmit that it was case where the deceased had taken her own life.Appellant and her brother had married around the same time. Two yearsinto the marriage, the appellant and his late wife/deceased were notblessed with child. On the other hand, child was born to his brother.This caused frustration, and finally, led the deceased to take the extremestep.

8. Next, he would contend that the incident took place and thepost-mortem was conducted allegedly on 10.03.2005. However, the reportis prepared allegedly only on 25.08.2005. Learned counsel posed thequestion as to the possibility that the post-mortem report, in fact, may berelated to somebody else. In this regard, he drew our attention to thedeposition of the father of the deceased. Father of the deceased haddeposed that it was true that the marriage of the appellant and thedeceased was performed happily and there was no quarrel between thespouses. He had also deposed that the custom of jumaki was followed.That some jumaki was performed in the house of the appellant andsome jumaki was performed in his house. Further, he has stated asfollows:

“It is true that there are four rooms in the house of accused. Itis true that accused Nos.1 and 4 were using separate bed room inthe house. It is true that within six months from the marriage,when ever Sultana visited to my house, she told me that I hadperformed her marriage in proper house and she is happy in thehouse of accused. It is true that my daughter was co-operativeand helpful natured girl.”

“It is true that when Sultana came to my house for Ramzan’festival, that time, Sultana told me that I should take her in thehouse of accused and there is no entertainment in my house.”

1 (1974) 4 SCC 193

2 1989 Suppl. (1) SCC 214

A9. He would further point out that reversing the verdict of theTrial Court, the High Court has acquitted the appellant as also the otheraccused of the charge under Section 498A of the IPC. This means thatthe appellant was not found guilty of cruelty under the said provision. Itwas, therefore, wholly illogical and not warranted by the evidence toconvict the appellant under Section 302 of the IPC. The inconsistencyBbetween the inquest report and the post-mortem report was highlightedand it was submitted that it has not received due consideration. He wouldsubmit that the external injuries which were noted in the inquestpanchanama in respect of swelling of the head, ligature mark of rope toneck, injuries to thigh and back are not noted by the Doctor in the post-Cmortem report. He complains that the Trial Court has got over this bymerely finding that in case of difference of injuries between the inquestpanchnama and the post-mortem report, the post-mortem report willprevail over the inquest panchnama. He reminds that the post-mortemreport has been prepared after more than five months from the date onwhich the post-mortem was allegedly performed. He would submit thatDwhen doubts were established, the appellant should have been thebeneficiary of doubts. He would further submit that if an adult person isthrottled, there would be resistance and the resistance would bemanifested. There is no evidence of any such resistance. All this pointsto the deceased having committed suicide. He further points out that asEnoted by the Court itself, it was the appellant who took the deceased tothe hospital. Had the appellant been the culprit, he would have destroyedthe body and certainly not taken the person to the hospital.

10. Per contra, the learned counsel for the State supported thejudgment passed by the High Court. He would point out that as regardsFthe discrepancy in the date of preparation of the post-mortem report,questions have been put in the examination of P.W.1 doctor and answerselicited. There was valid explanation which was the non-availability ofone of the doctors. He further pointed out that the provisional reportwas given on the date of the post-mortem, i.e., on 10.03.2005.GTHE FINDINGS OF THE TRIAL COURT

11. The trial court has accepted that the following circumstancesstood proved against the appellant and other accused:

(1)Motive;

(2)Custodial death of the deceased;H

[K. M. JOSEPH, J.]

(3)Non-disclosure of death by the appellant to the complainantA(father of the deceased);

(4)False evidence of accused of hanging;

(5)Inquest panchnama;

(6)Spot panchnama.

12. As regards motive, the trial court relied on the evidence ofPW 3 that all the accused were insisting on the deceased to bring halftola gold which remained to be provided by the time of marriage besidesone choice dress and Rs.5000/- for Bakery business. The appellantreiterated his demand and repeated his threat to kill deceased if thedemands were not met after eight days of her return to his house. Thetrial court also placed reliance on PW 4, the aunt of the deceased in thisregard. It is after the threat mentioned above that the deceased diedafter 8 to 10 days. It is found that medical evidence showed that thedeath is caused by throttling. All the accused by their joint act -one bypressing her neck, one by catching hold of her hand, another by catchinghold of her leg and one by pressing her leg killed her. There is medicalevidence to prove violence by killing her by throttling by pressing herneck. As the demands made by the accused were not fulfilled, infurtherance of common intention, the appellant’s wife was killed. Allthe accused were residing in the same house. They participated in thecrime and brought the body before the doctor saying she hanged herself.Therefore, motive to kill is clearly established. There is no evidence toprove that PW-4 was at the house.

13. Exhibit 24 is enlisted to show that the appellant brought thedead body before the doctor. Evidence of the complainant (PW-3) andPW-4 is referred to show that the deceased was residing with all theaccused in the house. When it is noticed that death took place due tothrottling, then the accused must prove as to how she died. Whileexplaining in the statement under Section 313 of Cr.P.C., none of theaccused explained about the death of the deceased. The point as tocustodial death was found established.

14. As regards non-disclosure of death by the accused to thecomplainant, it is found that PW-3 complainant has deposed that about8.00 A.M. on the date of the incident, he came to know from Isaq, sonof PW-4 by telephone from Solapur. The accused had not disclosed

Aabout the death to the complainant. PW-4 has not deposed that she wasintimated. The accused seemed to have kept mum after the death andhas not reported to complainant and other relatives. Also, the Court goeson to find that false statement was made regarding the death of thedeceased by hanging which is contrary to the medical evidence.

B15. In regard to the inquest panchnama, it is stated that it showsexternal injury like rope mark at neck, swelling to head, injury to thighand back as well as two teeth from the front side are broken and bloodwas oozing from the jaw. It is the case of the accused that the injuriesnoted on the thigh, back and swelling to head and ligature mark of ropeto neck is not noted in the post-mortem in Exhibit 22. Therefore, there isCa conflict between the inquest panchnama and the post-mortem report.The trial Court goes on to find that the external injuries noted in theinquest panchnama as noted above, were not noted by the doctor in thepost-mortem which is official. It is concluded that when there is differenceof injuries in the inquest panchnama and the post-mortem, post mortemDwill prevail over the inquest panchnama because panchnama (witnesses)are not experts like doctors. Accused cannot get benefit ofinconsistencies. Expert evidence based on scientific method will prevailover knowledge of ignorant men in that field. It was found that PW-1was an eminent doctor and in the last five years, he had done manypost-mortems and he was treated as an expert man. Thereafter, the trialECourt also relied upon the spot panchnama. The spot panchnama waseffected on the very day of incident i.e. on 10.3.2005. One rope of nylonwas seized. The spot of incident was one of the rooms situated in thehouse of the accused. It is having two-metre height wall. The height ofthe room is 5-feet 10-inches. The photograph of the deceased, theFpanchnama and the photograph of the place of the incident proved byPW-5 led the Court to hold that the height of the room is such that it wasnot probable for any person having normal height to hang in that roomand normal height of the man is 5 feet or more. The Court further proceedsto find that the F.I.R. is late but goes on to hold that merely because theF.I.R. is late, it does not mean that the case is false. Having referred toGthe circumstances, the Court also found that the complaint was filed bythe complainant late on the next day at the night hours but the explanationof the complainant that due to death of his daughter, he was unhappywas found acceptable. Regarding the contention of the accused that itwas case of suicide as the deceased had not delivered child whereas

the wife of the fourth accused (sister-in-law) of the deceased haddelivered child and therefore, she was frustrated was foundunacceptable. The deceased was only 20 years old. At the age of 20years, it could not be said that she cannot become pregnant in future. Itwas found that it was nobody’s case that the deceased was having someproblem having child. There is no case of any medical treatment.

FINDINGS OF THE HIGH COURT

16. This is case entirely based on circumstantial evidence. Thedeceased was living in her matrimonial home. She was living with herhusband. As regards the case under Section 498A IPC is concerned,the High Court finds that there is reason to infer that the deceased wasleading happy married life. The following part of the cross examinationof the PW 3, father of the deceased is relied upon:

“It is true that there are four rooms in the house of accused. Itis true that accused Nos. 1 and 4 were using separate bed roomin the house. It is true within six months from her marriage,whenever Sultana visited to my house, she told me that I hadperformed her marriage in proper house and she is happy in thehouse of husband. It is true that my daughter was co-operativeand helpful natured girl.”

“It is true that when Sultana came to my house for Ramzan’festival, that time, Sultana told me that I should take her in thehouse of accused and there is no entertainment in my house.”

17. On the basis of the aforesaid, the High Court finds that thesame speaks of different story. The deceased expressed her desire toreturn to the place of her husband (appellant) at point earlier thancontemplated by her father. It is found that there was ample admissionon the part of the father of the deceased and his sister that the parentsdid not take any legal steps such as lodging complaint with the policestation nor did they call elderly and respectable relatives for meetingand inviting accused persons to explain their conduct. The High Courtfound it difficult to believe that there was persistent demand from allthe four accused. In view of certain admissions, PW 4 aunt of thedeceased was found unreliable. The High Court found that it was difficultto believe that all the four accused were persistently demanding gold oramount and for pressurising the deceased or that they were subjectingher to ill treatment such as physical beating or starvation. It is thereafter

Athat the case of the appellant was found to stand on different footing.The deposition of PW 4 is noted, namely, “thereafter after 8 days Javedaccused came to my house at Solapur. He told me that his father-in-lawhas not provided gold, cloth and money till now and if it is not provided,he will kill sultana and thus by giving the threat he went away.” Theconveying of the aforesaid message to him by his sister on telephoneBgave assurance to the deposition of PW4. If at all, it was found thatthere was pressure upon the deceased for complying with the demands,it was from appellant alone. As regards the circumstances relied uponby the trial Court in regard to their motive, the High Court proceeds tofind that the motive is not proved as against accused 2 to 4 in as strongCmanner as against the appellant. As far as the custodial death isconcerned, it was found from Exhibit 24 that the deceased died sometimebefore 7.15 a.m. Post-mortem was performed at 3.30 p.m.. Therefore,it can be ascertained that the death ensued 12 hours earlier sometimeabout 3.30 a.m. Support from P.W.3 is drawn to conclude that the twonewly married couple were using separate bed room which allowed theDaccused 2 to 4 to escape from the allegation of custodial death againstthem at that time of the day and only the couple is bound to be in the bedroom. Therefore, custodial death was proved only against the appellant.Referring to the prosecutor’s argument based on the injuries of thedeceased that it was not the husband alone but others as held, was notEfound the only possible inference. Breaking of the front teeth wasindicative of some violence. The High Court proceeds to find that apossibility cannot be ruled out that the victim was found unguarded andlast but not the least, the impression injury on the thigh and ankle cannotbe ruled out, even though the sole assailant tried to pin down the victimby riding on the person of the victim and putting pressure on the thighsFby his knees and on the ankles by his feet. It is found that althoughadmissions are obtained from the doctor that such injuries are possible ifthe victim is gripped by someone else such admission is to be read onlyto the extent of medical opinion, that is, the injuries are possible, if thepressure is put on the thighs or ankles gripped. It was found an inferenceGof involvement of more than one accused on the basis of medicalevidence, is matter of imagination and therefore somewhat risky. Lastly,the statement of the appellant when he had admitted the deceased to thehospital that he had brought up the deceased for treatment that she hadhanged herself in an attempt to commit suicide, was used against theappellant as it was found to be settled legal position that false informationH

by the deceased who is obliged to offer explanation for death is acircumstance which strengthens the chain of circumstantial evidence.It is accordingly that the appeal was partly allowed. His convictionunder Section 498-A IPC was set aside, so was his conviction underSection 302 read with Section 34 IPC and he stood convicted underSection 302 IPC alone. The appeal filed by the other three accused wasallowed.

THE POST MORTEM REPORT

18. The injuries noted in paragraph 17 of the Post Mortem reportare as follows:

“Bruising and ecchymosis present on both sides on neck fromcenter to laterally on both sides of neck about 7 cm x 1 cm.

1.Abrasion (crescentric) present on left side extending fromcenter to lateral about 5 cm long.

2.Pale pressure mark present over both legs ante collaterallyover ankle region about 7 cm x 1 cm.

3.Contusion of upper lip 3 cm x 2 cm.”

Under paragraph 20 which deals with injuries to the Thorax region,the following injuries have been noted:

“A] Walls, ribs, cartilages/ & are noted as normal.

B] Pleura.

C] Larynx, trachea and bronchi

1. Subcutaneous tissue over both lateral aspect of both sideswollen and subcutaneous haemorrhage present.

2. Both sternomastoid muscle crushed and severe haemorrhagepresent beneath it.

3. Thyroid cartilage crushed laterally on both sides more onleft side.

4. Cricoid cartilage crushed on both sides.

5. Multiple small clots of blood seen around the laryangealcartilages.

D] Right Lung-Both lung congested.

AE] Left Lung – with petechiae and exuding dark blood on section.G] Heart with weight – Left side contained little blood, Right sideof the heart contained full of dark fluid blood.

Bucal cavity, teeth gongue: Upper left central incisor partly brokenand right central incisor totally broken within bleeding from gums.”

Stomach contents were noted as empty.

OPINION AS TO THE CAUSE

19. It is stated that Dr. I.C. Kolle and Dr. A.I. Syed have done thepost-mortem on 10.03.2005. Under the opinion as to the probable causeCof death, it is written Acute Cardio respiratory arrest. Secondary toacute asphyxia secondary to throttling. The report is signed dated25.08.2005. In the last page it is stated, forwarded to the police custodyand the date is shown as 10.03.2005.

DEPOSITION OF P.W.1 - THE DOCTOR WHO CARRIEDDOUT THE POST MORTEM

20. PW.1 is Dr. I.C. Kolle aged 32 years. He states that he hascarried out nearly 32 post-mortems during his service period. On10.03.2005 he received the dead body of the deceased in this case fromthe police station. He started doing post-mortem at about 3.30 p.m. andEcompleted by about 4.45 p.m.. The inquest panchnama was given tohim by the concerned police station. He noticed eyes semi open, tonguewithin mouth which has been noted at paragraph 13 of the post-mortemnote. He noticed 4 injuries on the dead body and those were noted assurface wounds and the injuries are at paragraph No.17 of the post-mortem note. He further deposed that these are surface injuries andFante-mortem injuries. These injuries occurred due to throttling by pressingneck by fingers and palm. Thereafter, he noted the injuries which wehave already extracted. He prepared the note. It is in his handwritingand signed by him. Dr. Syed was with him as colleague and he alsosigned on the post-mortem note. Injuries 1 and 2 noted in paragraph 17Gare corresponding to the internal injury of Larynx, trachea and bronchinoted in paragraph 20 are only probable by pressing the neck by usingfingers and palm. These injuries are sufficient to cause the death of thedeceased. The external injury, namely No.4, that is contusion of upperlip is corresponding to injury to teeth and tongue. These two injuries are

probable by pressing the mouth by hand. Paragraph 7 and 8 of the PW1deposition:

“Injury no. 3 noted in para no. 17 occurred to both legs areprobable by caught hold of both the legs with pressure of hand.

Injury nos. 1 to 4 are probable at once, if one person caughthold the legs by pressing with his hands of that deceased, oneperson if press the mouth by his hand and another person pressthe neck by his hand and all these persons acted so at one time, todeceased, injury nos. 1 to 4 are probable at one time.”

He agrees with the proposition given by Modi’s MedicalJurisprudence, 22[nd] edition at page no.333 “Bruises or contrusion injurieswhich are caused by compression. He also agrees with the followingstatement contained in Modi on Medical Jurisprudence 22[nd] Edition:

“Suicidal strangulation is not very common, though sometimescases are met with. In these cases, some contrivancem is alwaysmade to keep the ligature tight after insensibility supervenes. Thisis done by twisting cord several times round the neck and thentying knot, which is usually single and in front or at the side orback of the neck, by twisting cord tightly by means of stick,stone or some other solid material, or by tightening the ends of acord by tying them to the hands or feet or to peg in wall or tothe leg of bed. In such cases, injuries to the deep structures of theneck and marks of violence on other parts of the body are, as arule, absent.”

He agrees with the said proposition. He says according to him insuicidal death there are no marks of violence and in homicidal deaththere are marks of violence. He also agrees with the following propositionfrom the work Modi’s Medical Jurisprudence at page 270:

“3. Saliva- Dribbling out of the mouth down on the chin and chest.

4. Neck – Stretched and clongated in fresh bodies.

7. Ligature mark – Oblique, non-continuous placed high up in theneck between the chin and the larynx, the base of the groove orfurrow being hard, yellow and parchment- link.

10. Injury to the muscles of the neck- Rare.

A14. Scratches, abrasions and bruises on the face, neck and otherparts of the body – Usually not present.”

21. He states that the above features can be noticed in case ofhanging and he agrees with the same proposition. While doing post-mortem he deposed he has not noticed any of the above symptoms onthe dead body and it is not noted in the post-mortem as it is not seen. Hedefinitely opines that in the given case, the death occurred due to throttlingby external violence and it is homicidal death. He goes on to depose thatinjury No.2 and 3 in column 20 of the post mortem are only to be noticedin case of homicidal death. And these are marks of violence and thuscannot be noticed in case of hanging and suicidal death. He issued Exh.23 provisional death certificate immediately to the police. It is in thehand writing of Dr. Syed. Both he and Dr. Syed have signed it. In crossexamination he would state as follows:

The dead body of the deceased was brought at about 7 to 7.30a.m. After checking the deceased was declared dead andinformation was given to the police. He denies that whendeceased was brought she was alive. He denies that he wasconfused and the exact time of the death was not mentioned.Rigor Mortis was stated to develop 3 hour after death andcompletes within 12 hours. He has not preserved the viscera.According to him Police Commissioner immediately demandedprovisional death certificate. He denies that he issued the post-mortem report on 25.08.2005. The post-mortem note was alreadyprepared and one doctor was not available to sign it and thereforeafter signing it, it was issued. He denies that he has prepared on25.08.2005. He further denies that when the body of deceasedwas brought, it had elongated neck. He states it is untrue to saythat Injury No.1 in para 17 of the post-mortem note can appear incase of hanging also. Bruises and ecchymoses are sometimesseen in case of hanging also in the groove of the ligature mark.He deposed that it is not true that Injury No.3 in para No.17 of thePM note is not at all possible to occur when the body is in hangingcondition and some persons by catching one leg and another legare trying to remove the dead body. He says in further crossexamination that it is true that Injury No.1 in para 20(c) of post-mortem note is probable in the case of hanging. As far as InjuryNo.2 in Para 20(c), he states that it is not true that Injury No.2

occur in the case of hanging. He also deposed that it is not true tosay that in the case of hanging thyroid cartilage may be crushed.He has not seen nail mark and scratch of nail mark on the face orneck of the deceased. He deposed that these types of marksused to be present in the case of throttling but it is not necessaryto be present.

Injury No.5 at 20(c) occur in the case of hanging. Lungs gettingcongested is common in hanging as well as throttling. He furthersays that it is not true to say that in the case of hanging whenperson is struggling in that case teeth may break. He further saysit is not true to say that saliva was coming out from the mouth ofthe deceased and relatives were cleaning it. He has not seenwhether the face of the deceased was pale or not. In the case ofstrangulation by rope or ‘Dupatta’, the ligature mark may be noticedaround the neck. While doing post-mortem he has noticed injuriesat the head and back of the deceased. It is true that in the case ofhanging, the eyes used to close or used to remain in semi closecondition. It is true that in the case of hanging fracture of larynxand trachea - often found also hyoidbone. It is true he says thatthe deceased had not faced fracture to larynx, trachea andhyoidbone. In the case of hanging fracture by larynx and trachea– very rare and that too in judicial hanging. He denies that herstomach may remain empty due to vomiting. In cross examinationfor the 4[th] accused, he states inter alia as follows:

In case of hanging and in case of throttling pressure on neck iscommon factor. In the case of throttling by hand, person canresist that throttling. In case of resistance there will be markof nail on neck. The person who is facing throttling when oneperson is pressing the mouth and other person is catching thelegs by using pressure of his hands he will resist by bangingthe hand on earth in that case there will be injuries to hands. Itis probably if the legs are caught hold by hand, then it is possibleto occur injury at posterior side of the leg. In post-mortem, no-injury marks on hands are noted. And also no injury marks atposterior side of leg is noted. He deposed that it is not truethat the injuries in para 17 are possible by accident and byassault also. He also says that it is not true to say that theinjuries shown in in para 20 are possibly by hanging. Ligature

Amark are occurred on the basis of smoothness and hardnessof the things used for occurring of the ligature mark. It is truethat if the smooth article like ‘Dupatta of Malmal’ used forhanging then there will be no ligature mark on the leg. Hestates it is not true that Injury Nos. 1 to 4 noted in paragraph17 are probable to occur one by one and not at once. It is notBtrue that in case of hanging injury No.3 is possible by cominginto contact of legs with stool and table etc. If only externalinjury No.1 and 2 occurred as shown in paragraph 17 andimmediately medical aid is provided he may survive. In thecase of throttling by hands by using fingers and palm thereCcannot be fracture of larynx. In re-examination he said that inthe case of strangulation by hand fracture of larynx and tracheais not necessary to be occurred even though it is said in columnNo.12 of strangulation at page No.270 (apparently in Modi’swork). According to him, fracture of larynx and trachea usedto occur in strangulation but in the case of throttling by handDsuch fracture cannot occur. By using hard and blunt objectlike stone and stick if the strangulation is caused, in that casefracture of larynx and trachea often found also hyoidbone.

22. The differences between hanging and strangulation have beenhighlighted by Modi on Medical Jurisprudence and Toxicology, 25thEdition,

Eas follows:

HangingStrangulation1.Most suicidal.1.Mostly homicidal.2.Face-Usual pale and2.Face-Congested, livid andFpetechiae rare.marked with petechiae.3.Saliva-Dribbling out of3.Saliva-No such dribblingmouth down on the chinand chest.

4.Neck-Stretched andGelongated in fresh bodies.5.External signs of asphyxiausually not well marked.

4.Neck-Not so.

5.External signs of asphyxia,very well marked (minimal ifdeath due to vasovagal andcarotid sinus effect.

23. As to what is the distinction between strangulation and throttlingis also dealt within the self-same work:

“Definition-Strangulation is defined as the compression of the neckby force other than hanging. Weight of the body has nothing todo with strangulation.

Ligature strangulation is violent form of death, which resultsfrom constricting the neck by means of ligature or by any othermeans without suspending the body.

When constriction is produced by the pressure of the fingers andpalms upon the throat, it is called as throttling. When strangulationis brought about by compressing the throat with foot, knee, bendof elbow, or some other solid substances, it is known as mugging(strangle hold).

form of strangulation, known as Bansdola, is sometimes practisedin northern India. In the form, strong bamboo or lathi (woodenclub) is placed across the throat and another across the back ofthe neck. These are strongly fastened t one end. rope is passedDround the other end, which is bound together, and the unfortunatevictim is squeezed to death. The throat is also pressed by placinga lathi or bamboo across the front of the neck and standing witha foot on each of lathi or bamboo.

Garrotting is another method that was used by thugs around 1862in India. rope or loincloth is suddenly thrown over the headand quickly tightened around neck. Due to sudden loss ofconsciousness, there is no struggle. The assailant is then able totie the ligature.”

24. It is necessary in this case to look at the post-mortem and alsoFthe evidence of the medical officer P.W.1. In the light of the differencesbetween hanging and strangulation, in case of hanging, saliva will dribbledown the mouth down on the chin and the chest whereas in case ofstrangulation, there will be no such dribbling. P.W.1, Medical Officerwas specifically asked with respect to Saliva. He has stated that whiledoing post-mortem he has not noticed saliva. In cross examination alsoGhe states that it is not true to say that Saliva was coming out of themouth of the deceased and relatives were cleaning it. In the case ofhanging, the neck will be stretched, elongated in fresh bodies while it isnot so in the case of strangulation. P.W.1 has stated that he has notnoticed that the neck was stretched and elongated in the case of thedeceased.

25. P.W.1, it is true, has opined that in the case of hanging, eyesused to close or used to remain in semi closed condition. It may benoted at this juncture that paragraph 13 of the post-mortem wherein it isstated eyes semi open, tongue within mouth.

External Injury No.1 in paragraph 17 is stated to be bruising andecchimoysses present on both side of neck about 7 cm. x 1 cm.. In thisconnection the deposition of P.W.1 doctor is relevant:

“5. Injury nos. 1 and 2 noted in para no.17 are correspondingto internal injuries of larynx trachea and bronchi noted in para 20under the head thorax in PM note Ex.22. these injuries noted inPM note are only probably by pressing the neck by using fingersand palm. These injuries are sufficient to cause the death ofdeceased in ordinary course of nature.”

26. Abrasion and Ecchymosses round about the edges of ligaturemark is stated to be common in case of strangulation. Further P.W. 1deposes that upper external injury No.4, that is contusion, on upper lipnoted in paragraph 17 is corresponding injury to teeth and tongue whichis described in paragraph 21. He further states that these two injuriesare probable for pressing mouth by hand.

27. Injury to the muscles of the neck is stated to be common incase of strangulation whereas in case of hanging injury to the musclesof the neck is rare. In this connection it is to be noticed that in paragraph20 of the post-mortem, it is stated that both sternomastoid muscle crushedand severe haemorrhage present beneath it. In this connection, it isrelevant to understand what is sternomastoid muscle and where it islocated. The Sternocleidomastoid muscle is also known as sternomastoidmuscle. It is one of the largest and most superficial cervical musclelocated in the superficial layer on the side of the neck. It has its originfrom the middle portion of the clavical and the manubrium sternix.Manubrium sternix is upper most portion of the sternum bone. The postmortem finding in this case is to the effect that sternomashoid muscle iscrushed and there is severe haemorrhage present beneath it. This featureis compatible with the case being one of strangulation as injury to themuscle of the neck is rare in hanging. Fracture – dislocation of thecervical vertebrae is common in judicial hanging whereas it is rare in thecase of strangulation. The post-mortem result does not show that thereis fracture or dislocation of cervical vertebrae. The cervical vertebrae

Aare the vertebrae of the neck immediately below the skull. Neither inthe post-mortem nor in the deposition of PW 1 is anything brought out toshow that there is either fracture or dislocation of the cervical vertebrae.The absence of the same also probablises clearly the case of prosecutionthat this is case of strangulation or rather throttling.

B28. It is no doubt true that in the case of hanging, fracture of thelarynx and trachea is very rare and that too it may be found in judicialhanging. On the other hand, fracture on the larynx, trachea and hyoidboneindicates strangulation. P.W.1 doctor states in cross examination thussay that it is true that the deceased had not faced fracture to the larynx,trachea or hyoidbone. P.W. 1 in the re-examination explains the absenceCof fracture to larynx, trachea and hynoidbone in the following terms:

In case of strangulation by hand fracture of that larynx and tracheais not necessary to be occurred and the distinction between hangingand strangulation and the general tendencies of hanging andstrangulation are given.D

29. He further states according to him, in the case of throttling byhand, fracture of the larynx and trachea cannot occur. It occurs instrangulation. He deposed that by using hand and blunt object like stoneand stick, if strangulation is caused, in that case fracture of the larynx,trachea and hyoidbone have been found also. We have noticed thatEthrottling is constriction produced by pressure of fingers and palm uponthroat. In ligature strangulation it can be either by leg or by any othermeans. Mugging is when strangulation is brought about with the foot,knee, bend of elbow or some other solid substances. The deposition ofthe medical officer is not inconsistent with the distinction between throttlingFand strangulation. In this case the choice is between finding death byhanging or by throttling. We have noticed that among the injuries, InjuryNo.3 in paragraph 20 is thyroid cartilage is crushed laterally on both sideon left side. The further injury which is noted is cricoid cartilage and itis also crushed on both side. P.W. 1 doctor has deposed that Injury No.2and 3 in paragraph 20, namely, both sternomastoid muscle being crushedGand severe haemorrhage being present beneath it and Injury No.3 thyroidcartilage being crushed literally on both sides on left side are only noticedin the case of homicidal death. He has further deposed that these aremarks of violence and they cannot be noticed in the case of hanging andsuicidal death. We have already noticed that injury to the muscle of theHneck, is only rarely found in the case of hanging whereas injury to the

muscle of the neck is common in strangulation and that the sternomastoidmuscle is indeed muscle of the neck.

30. One of the contentions of the appellant is if there is case ofthrottling or any other form of strangulation, the victim would undoubtedlyresist. The resistance would produce struggling and there would bemarking of nail on the neck and face. P.W. 1 has indeed deposed that hehas not seen nail marks and scratches of nail marks on the face and theneck of the deceased. In the work by Modi, scratches, abrasion fingernailand bruises on the face, neck and other parts of the body are usuallypresent in the case of strangulation. P.W. 1 would however, state thatthese types of marks used to be present in the case of throttling but it isnot necessary to be present. He also further says that bruising is itselfindicate, it is reddish brown colour.

31. Having considered the conclusion in the post-mortem and thedeposition of medical officer and analysed in the light of the principleslaid down in the work Modi’s Medical Jurisprudence and Toxicology, letus also appreciate the other evidence on record.

32. Both the courts have noted from the spot panchnama that theheight of the room was just 5 ft. 10 inches. conclusion has beenreached that the theory of hanging is incompatible by person of normalheight or even if the height is 5 ft. We see no reason to take differentview in this regard. This also strengthens the case of the prosecutionbased on findings in the post-mortem and the deposition of the medicalofficer.

33. There is case for the appellant that it was the appellant whotook the deceased to the hospital. This is true but the further inferencesought to be drawn by the appellant that it means that the appellant wasinnocent and had he not been innocent he would have not brought thebody of the deceased to the hospital, is not true. Having regard to theother evidence which we have already discussed pointing it to be caseof strangulation or rather throttling, apparently the appellant sought tobuild up case of the deceased dying as result of hanging. In fact, inhis questioning under Section 313 Cr.P.C. he does not specifically set upa case of hanging as such. He states in answer to question No.42 thatall witnesses are speaking lie against us due to teaching of his father-in-law and Sunnabee (P.W.4). In answer to question No.45 which was, doyou want to say anything else about the case, he says it is false case.

A34. There remains the contention of the appellant that since theprosecution has set up specific case and the said charge was underSection 302 read with Section 34 IPC on the basis that appellant alongwith accused Nos.2 to 4 together had committed the crime and once theHigh Court has acquitted accused No.2 to 4, it is not open to the HighCourt to convict the appellant under Section 302 IPC on the basis thatBthe crime was committed by only him and therefore he was entitled toan acquittal.

35. In Krishna Govind Patil v. State of Maharashtra3, fouraccused were charged for the murder of one Vishwanath. Theprosecution case inter alia was that there was grudge against VishwaCNath as he had helped Deoram Maruti Patil in getting acquittal in amurder case where relatives of the four accused were murdered. Thefour accused were charged under Section 302 IPC read with Section 34IPC. They were all separately charged under Section 302 IPC. TheSessions Judge acquitted all the accused. The State preferred an appealDto the High Court against acquittal under Section 302 read with Section

34 IPC. No appeal was preferred against the order of acquittal underSection 302 IPC. The High Court dismissed the appeal against accused1,3 and 4. The High court, however, convicted the 2[nd] accused underSection 302 read with Section 34 IPC. It is in this appeal by the 2[nd]accused that this Court proceeded to consider various situations whichEmay arise and thereafter proceeded to held as follows:

“8. But the present case falls outside the said three illustrations.The High Court gave conflicting findings. While it acquittedAccused 1, 3 and 4 under Section 302, read with Section 34 of theIndian Penal Code, it convicted Accused 2 under Section 302,Fread with Section 34, of the said Code, for having committed theoffence jointly with the acquitted persons. That is legallyimpossible position. When accused were acquitted either on theground that the evidence was not acceptable or by giving benefitof doubt to them, the result in law would be the same: it wouldGmean that they did not take part in the offence. The effect of theacquittal of Accused 1, 3 and 4 is that they did not conjointly actwith Accused 2 in committing the murder. If they did not actconjointly with Accused 2, Accused 2 could not have actedconjointly with them. Realizing this mutually destructive findings

of the High Court, learned counsel for the State attempted tosustain the finding of the High Court by persuading us to hold thatif the said finding was read in the context of the whole judgment,it would be clear that the learned Judges meant to hold that personsother than the acquitted accused conjointly acted with the convictedaccused. We have gone through the entire judgment carefullywith the learned counsel. But the observations of the learned Judgesas regards the “other participants” in the crime must in the contextrefer only to the “one or other of that said three acquitted accusedparticipated in the offer he committed by Accused 2”. There isnot single observation in the judgment to indicate that personsother than the said accused participated in the offence, nor isthere any evidence in that regard. We, therefore, hold that thejudgment of the High Court cannot stand. We are satisfied that onthe findings arrived at by the High Court, the conviction of Accused2 is clearly wrong.”

36. In similar vein is the view taken in the judgment of this Courtin Sawal Das v. State of Bihar4 wherein the appellant, his father andhis step mother were accused of committing an offence charged underSection 302 simpliciter. The appellant, his father, driver and 8 otherswere charged under Section 201 IPC. The appellant’s step mother wascharged under Section 302 read with Section 109 IPC. Though the trialCourt convicted the appellant, his father and step mother under Section302 read with Section 34 IPC which was the amended charge by thetrial Court, the High court acquitted the appellant, his father and stepmother under Sections 302 read with Section 34 IPC but instead foundthe appellant guilty under Section 302 simpliciter. This is besides findinghim guilty under Section 201 IPC but without separate sentence againstthe appellant. This Court considered the circumstantial evidence. Itreferred to the judgment of this Court in Krishna Govind Patil v. Stateof Maharashtra(supra) and held as follows:

“14. Mr. Mulla, appearing for the appellant, has also drawn ourattention to K.G. Patil v. State of Maharashtra [AIR 1963 SC1413] . This Court held there that, when two out of three accusedpersons, each having been charged under Section 302 read withSection 34, Indian Penal Code, were acquitted, it must be assumedthat the two acquitted persons did not participate in the commission

4 1974 (4) SCC 193

of the offence at all. It is contended that the natural result of thisview is that the particular act of the individual accused whichbrought about the death of the murdered person must be establishedbeyond doubt before he is singly and separately convicted underSection 302, Indian Penal Code simpliciter.”

But it is relevant to notice paragraph 17 and 18 of the judgmentand the same read as under:

“17. We think that, upon the facts of this case, there could be areasonable doubt as to whether Section 34 IPC could be appliedto convict any of the three accused persons of murder. Afterexcluding the application of Section 34 IPC to the case, the evidencedoes not also appear to us to prove conclusively that the appellantmust have either throttled the deceased or done some other act,-quite apart from the acts of his father and stepmother, whichbrought about the death. This result follows from the totality of-evidence and the presumption from the nonproduction of GeetaKurmini which destroys the value of the evidence, which weighedso much with the High Court, that the appellant was doingsomething like pushing or taking the murdered woman inside herroom at the time when she was last seen alive.“18. The trial court and the High Court, relying on the evidence ofsome bleeding of the body of the deceased, admitted by theappellant to have been carried in the car to the burning ghat, andthe absence of evidence of death caused by burning, came to theconclusion that the appellant must have throttled the deceased.This was pure conjecture after eliminating the defence case ofburning by accident. If it had been case of throttling only, itwould be difficult to explain the cries of murdered woman forhelp which were heard by witnesses on the road unless we assumethat the murdered woman cried out, as she may have done, beforethe hands which choked her were placed on her throat. Therefore,although we may hold, as we do, that this must be case ofmurder, it is not possible for us to find conclusively that it was acase of throttling and of nothing else or that the person who couldhave throttled or done some other act which actually killed thedeceased was the appellant and not his father or stepmother.”

(emphasis supplied)

37. In Sukhram case (supra) two accused persons were convictedby the trial Court under Section 302 read with Section 34 IPC and underSection 436 read with Section 34 IPC. The High Court acquitted one ofthem giving him the benefit of doubt. It is found that though the co-accused and the appellant were individually charged under Sections 302and 436 IPC and alternatively under Sections 302 read with 34 IPC andSection 436 read with Section 34 IPC, the latter was found acceptableto the Sessions Judge. The co-accused was acquitted on the ground ofbenefit of doubt. In such circumstances, since this was case wherethe co-accused was named person and was acquitted, the appellantcould not be said to have acted conjointly with anyone in the commissionof the offence. The court also noticed infirmities and contradictions inthe evidence.

38. It is clear the evidence in this case clearly supports the caseof throttling. As far as the motive is concerned, there is the evidence ofP.W.4 that few days prior to the date of incident appellant had visitedher and told her about not being given the half tola gold and money. Shealso deposed about being told by the appellant that result of non-compliance with his demands would be that he would kill his wife. P.W.3has also spoken of the threat as conveyed by P.W.4. This has beenbelieved in by two courts.

39. Another circumstances which is found by the High Court isthat, as is natural, the appellant and his wife had separate room,therefore, there was custodial death in which the appellant alone hasbeen implicated. The death is found to have taken place somewherearound 3.30 in the morning. The finding by the High Court is that by thattime the appellant would be with his wife. This cannot be described asmanifestly erroneous.

40. As far as the contention of the appellant that the date of incidentis 10.3.2005 but post mortem note shows date 25.8.2005, P.W.1 saysthat it is not true that he issued Post-mortem note on 25.8.2005. Hefurther says that it is his say that PM Note was already prepared andone doctor was not available to sign it and therefore after signing it wasissued. He further says, it is not true to say that he has prepared the PMnote on 25.8.2005.

41. The post-mortem note indicates time of receipt of the body as3.15 p.m. on 10.3.2005. The post mortem is stated to have begun at

A3.30 p.m. on 10.3.2005 and ended at 4.45 p.m. on 10.3.2005. It is statedto be done by P.W.1 medical officer and by one another, namely, Dr.A.I. Syed. The date is shown as 25.8.2005 on the post mortem note.This apparently, is in tune with the deposition of P.W.1 that other doctorwas not available. At the same time, we notice that on said date10.3.2005, there is provisional death certificate which has been issued,Baccording to P.W.1 him, to the police immediately. It is in the handwritingof Dr. syed. He deposes that he and Dr. Syed have both signed on itand the contents are true and correct. It is marked as Exh.23. In hiscross it is deposed by him that according to him police machineryimmediately demands provisional death certificate and when the causeCof death is known after post-mortem they immediately issued theprovisional death certificate. It can be understood as follows:

Apparently, the post-mortem was conducted. They came to theconclusion that the cause of death was as noted in the provisional deathcertificate and so issued the same. The detailed contents of the post-Dmortem were thereafter entered. No doubt, there is some gap, that isfrom 10.03.2005 to 25.08.2005 but this is on the basis that one doctorwas not available to sign it.

42. It is inter alia certified by the two doctors in the provisionaldeath certificate that they have done the post mortem on the body ofEMrs. Sultana Javed Sheikh, 20 years of age on 10.3.2005 and the probablecause of death seems to be acute cardiorespiratory arrest secondary toacute asphyxia, secondary to throttling. The said certificate is dated10.03.2005. There is the date, 25.08.2005 on the Post Mortem report.Also, the date 10.03.2005 is shown against the Column-forwarded tothe Police Sub Inspector, Naldurg. But the reason appears to be thatFthough Post Mortem was conducted on 10.03.2005, it was signed by thedoctor on 25.08.2005. Though it could be argued that the reason for thedate 25.08.2005 is that one of the doctors was not available but however,on 10.03.2005, in the provisional death certificate how could both thedoctors have signed. It would appear from the report that Dr. A.I. SyedGis the Medical Officer of Primary Health Centre, Jalkot and it is his nonavailability after the content were entered in the Post Mortem reportthat led to report being delayed. Though there is gap, we find assurancefrom the fact that the provisional death certificate which is marked asExh.E-23 and which is dated 10.03.2005 corroborates E-22 Post Mortem.

43. As far as the injuries in the Inquest report not being noticed inthe post-mortem report is concerned, there can no doubt that the medicaldoctor knows exactly what medical injuries are and ordinarily in case ofinconsistency, the medical report of the doctor should prevail. Havingregard to the post mortem and the evidence of P.W.1, the nature ofinjuries noticed as explained by the deposition of P.W.1 unerringly pointto the death being caused by throttling as opined by the doctor. Muchmay not turn on the injuries which are alleged to have been noted in theInquest not being noted in the post mortem note.

44. We see no merit in the appeal. The appeal is dismissed. Asappellant has been released on bail, the bail bonds are cancelled andappellant be taken into custody to serve out the remaining sentence.

Ankit Gyan

Appeal dismissed.